Author: Manya Shah, OP Jindal University

As technology advances, we can see individuals interacting with each other through social media and other online platforms. Individuals often share their own views and opinions on these platforms as they interact with people. As they share views, they also get directly influenced by the views and opinions of others, which brings us to the conclusion that online platforms have a direct impact on one’s views and opinions. This makes social media an effective platform through which powerful individuals can shape people’s views and opinions towards a particular individual.

In a basic sense, the rise of online politics has become a new thing in the world. This brings us to the concept of platform governance, in which powerful politicians post online views or run online campaigns to convince the public that their government will do the best for the people. In this essay, we will be critically analyzing how digital platforms regulate live streaming of copyrighted content, and we will also identify legal, technological, and policy challenges in real-time enforcement. We will also explore the balance between copyright protection and user freedom. To support our research, we will be utilizing the various case studies, online tweets, and YouTube videos to understand the extent of this issue.

Key Words: Platform governance, Live streaming, Copyright infringement, Content moderation, Intermediary liability

Technological developments have led to the rise of online platforms that promote various political views and opinions. The intersection between technological development and influence on political governance is clearly evident in the current world. We can take the example of the 2016 US presidential elections, in which Donald Trump utilized the Russian government’s help to gain a dominant position in politics and to win votes in the election. Platform governance in general refers to policy, technical, and design decisions that impact a global network of internet users.

The algorithms that are present online try to shape the platforms in such a way that would advocate the interests of the ruling party or a particular government. Copyright content is that content that enjoys a certain level of freedom and protection so that it cannot be copied. The rise of technology has also led to a high level of unauthorized use of copyrighted content on online platforms such as YouTube and Twitter. This has led to a concern about how the government can balance compliance with copyright laws while preserving freedom of expression and avoiding excessive censorship.

In this paper, we will examine the governance challenges faced by digital platforms in regulating live streaming of copyrighted content. The primary objectives are to first understand the present regulatory and legal frameworks that are present in our current system, and then we will also understand the nature of the current online platform, such as live streaming, and then we will be looking at what the meaning of temporal governance is and finally we will understand the different system adopted by different nation to deal with the problem of copyright act.

The study adopts a doctrinal and analytical methodology, drawing on legal provisions, case law, and policy developments, alongside an examination of platform practices. It also engages with scholarly literature on digital governance and intermediary liability to provide a comprehensive understanding of the issue.

The paper is structured as follows: it begins with an overview of the legal framework governing copyright and intermediary liability, followed by an analysis of the specific challenges posed by live streaming. It then evaluates current platform governance mechanisms and their limitations, before concluding with recommendations for a more balanced and effective regulatory approach.

In the existing literature on political governance, the issue that persists regarding materials getting copyrighted has made various scholars satisfied with what they have researched at the current point in time. In reality, this is not the limitation of the current problems. Current literary works have often overlooked a crucial dimension of live streaming and its temporal nature. In this literature review, we will establish debates while introducing the concept of temporal governance, which highlights the problem that exists, which is the major difference between live streaming and the slower process of legal enforcement.

A major body of works and literature focuses on the functioning of various provisions such as the DPDA ACT 2013, the Digital Millennium Copyright Act, and the Information Technology Act 2000. They are built around a notice and take-down model, which involves finding the content and then enforcing legal procedures to take down this content. In reality, this method is really slow and time-consuming; many times, online content on which actions are required is taken down within seconds, and eventually, the real perpetrator gets away with the crime that they have committed. 

Judicial decisions have worked on enforcing more of a reactive approach, such as Viacom International v. YouTube, in which the court emphasized that platforms are not required to proactively monitor content unless they possess specific knowledge of infringement. Similar to the case of India, such as the Shreya Signal Vs Union of India, the Supreme Court of India limited the obligations of the intermediary to instances of actual knowledge through court or government orders. While these case laws have played a crucial role in clarifying the rights and setting the boundary that would prevent excessive control, it has also led to a time lag in enforcement.

The use of automated algorithmic code and tools to identify data that infringes copyright and various other laws is clearly evident in YouTube and various social media platforms, but this often lacks transparency, as many times there are various flaws that are present within the algorithm, which shows a lack of procedure that was followed while censoring certain works this has led to the rise of predictive governance model where in enforcement decisions are made in anticipation of infringement rather than in response to verified violation.

In this research paper, we will be focusing on conducting in-depth research on understanding the present flaws that are present in the current system that are present in platform governance. We must understand that there should be a perfect balance between censorship and regulation of online content on various social media platforms.

In this research paper, I will be utilizing three approaches to study and to critically evaluate the problems that are present in platform governance in India. We will be using the comparative analysis method to understand the flaws that are present in the current platform governance system, and this will help us to understand the suitable laws or statutes that could be adopted by our nation to improve and remove the flaws that are present in the current system. Using this method of research will allow me to extend my research, as this comparative method will allow me to understand the flaws that are present and possible solutions that can be adopted by our country to further improve the present flaws that are present. 

I will also be utilizing empirical resources to understand and support the arguments that I will be making in the paper. The empirical research technique will allow me to create a strong foundation to support my statement, and this would also address my concern about the present issue of platform governance.

It is really important that, before moving on to the provisions present, we understand the meaning of intermediary liability. According to Rebecca MacKinnon, “Intermediary liability means that the intermediary is held liable for everything its users do”. This basically suggests that these intermediary platforms are directly liable for what their users do. This relationship is somewhat similar to the agent-principal relationship, in which the intermediary is liable for the acts of users who post content on their platform. Once this aspect is clear, it makes it easy for us who are supposed to take down content that has been published by someone who is held liable for not doing so, and what sort of punishment could be imposed on them. According to the Information Technology Act, 2002, the term intermediary " is defined under section 2(w) as follows: “(w) ‘Intermediary’ with respect to any particular electronic message means any person who, on behalf of another person, receives, stores, or transmits that message or provides any service with respect to that message”. This clearly defines the concept of who is an intermediary, and it also implies that the intermediaries are responsible for the action of the user.

The process of removal of various content published online is supposed to be taken down by the intermediary that has control over the platform. These provisions are present under Article 81 of the IT Act, which states, “The provisions of this Act [IT Act] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957, or the Patents Act, 1970”. While Article 79 acts as a safe harbor for these intermediaries, in which they are protected if they have taken down the illegal content or against public morality. We can take an example of a major case, which is Viacom v. YouTube (2007), in which YouTube enjoyed safe harbor under Article 79, which allowed it to be safe as it had taken down the illegal content. Now, if we come to the problem that lies in the current situation is whether such an intermediary requires such provisions that protect them because they have taken down the content after publication. This shows the major flaws that are present in the current statutes and the act that is present. We must pay special attention to this issue, as there is an urgent requirement to place strict enforcement on intermediaries who allow the publishing of such content, and the taking down of this content is also really slow. This causes major decay in the current system, as it only acts post the publication of such content online. The harm is already done. We must incline towards a temporal governance system that takes proactive action against such content.

In the current era, the system of Live streaming is dynamic and evolving. It includes various influencers and individuals who promote different brands and different styles of things that often-spread ideas and views really fast from one person to another. On the other hand, the meaning of ephemerality refers to the nature of the content, which is temporal and fleeting in nature. Live streaming is known to be authentic in nature due to the lack of editing and pre-recording, which makes people believe it is authentic. As this content is believed to be reliable in nature, it makes it easy for individuals to spread ideas that make the public go against moral principles that are theirs. This acts as a challenge to the current provisions that are there, which act after the crime is done or after the publication of the content, as there is a lack of provisions that manage such kind of content online. This is a major challenge for the current government system as it must implement provisions that control such kinds of actions.

To support this claim, I would like to draw your attention to the recent WIPO report on digital copyright, which focuses on reasons why it is difficult to impose and identify such content online. First is the anonymity, which makes it difficult to find out who has committed the act. Second, this is a “Wack a Mole Problem” as this problem reappears elsewhere. Third, this issue becomes a cross-border issue; many times, these influencers do not belong to the same country, and now there is often confusion on which laws will be applied to those intermediaries or the influencer. Finally, there is a lack of a uniform global enforcement mechanism. This concludes that digital copyright is reactive, fragmented, and slow against fast-moving content like streams.

The rise of temporal governance in the current era has become an important aspect because there are massive gaps that are present between legal actions that are supposed to be taken by the government. The concept of temporal governance acts as a solution to the problem of filling this gap. This slow method of resolving the issue can clearly be seen in the above-mentioned WIPO report on copyright, on how the current system has become really fast and advanced, due to which the traditional method of resolving these problems is not sufficient to address the current issues that are being faced by us.

The harm it causes is irreversible in nature, as once copyrighted material, such as a live concert or sports broadcast, is streamed online without legal rights. It loses economic value to a great extent. The Organization for Economic Co-operation and Development has made a similar observation that the current enforcement system struggles to keep pace with the volume of online content circulation, as it is impossible to identify all resources that have such information and the ability to identify all that content that is illegal in nature. Similar is the case of the implementation of the European Digital Commission Service Act, that addresses the problem through the notice and action method. These mechanisms are reactive in nature rather than solving the issue at the core. Various scholars as well condemn the current system and state that the actions are only taken after the crime is committed. 

To sum up, temporal governance allows us to understand the mismatch between the action taken and the crimes that are committed. This flaw, which is present, acts as a major barrier to fixing the issues in the online media system.

In the current era, the use of Algorithmic platforms has become increasingly common to handle the rapid pace at which this content has become public on online platforms. Various online intermediaries are utilizing algorithmic code to identify violations of various provisions that are set under the IT Act 2020. But these algorithms often lack precision and transparency. As they are often unregulated, there is a lack of transparency.

These algorithms often involve the use of certain well-established patterns that are meant to be identified by these algorithms, and this identification allows the algorithm to sort materials and content that violates the set rules. Now these patterns are fixed, and content may or may not follow those patterns. This allows various content that is not supposed to be published to get published online. This has a major disadvantage as it eventually fails to achieve what it is supposed to achieve in the end.

We must avoid these algorithmic patterns and move beyond, and work on updating our current legal enforcement system that prevents the publishing of content that does not meet the criteria that it is supposed to. Implementing this check at the point of it getting posted is much more effective than imposing these regulations afterward.

In the United States, platform liability is governed by the notice and takedown framework under the Digital Millennium Act. It involves the takedown of online content after it has been published online. In this situation, the intermediary enjoys a certain level of safe harbors as they are exempted from any form of punishment if they have taken down the content within a given amount of time. The US Copyright offers it to be a relatively active system that places a burden on the hands of right holders to report and identify the violation. On the other hand, we have the European Union under Article 17 of the Copyright Directive and the Digital Services Act that places greater responsibility on the platform to prevent the infringement of any right.

India adopts more of a hybrid and evolving framework, such as the legal framework under the IT Rules and judicial representation that provides safe harbor protections, but it also increases due obligations for the intermediaries. Courts play a crucial role in acting as a dynamic injunction that blocks content that infringes rights. This approach of India is Hybrid in nature. The path that India follows experiments with both extremes, but I believe that the laws must be strict, and it should fall within the provisions of the constitution in order to avoid the violation of the rights of others. India must choose its own path and implement policies that avoid publishing extreme views that are against public morality or infringe the Copyright Act.

The pace at which the world is moving is really fast and dynamic, hence all of us need to come together and find out the issues that are present, and then we need to find out possible solutions that could stop any further harm in our society. The flaws that are present in the current system adopted by various nations are that actions are often taken after the crime has been committed, such as the take-down method, which involves taking down the content online after it has been identified as violating the current set of principles that are present. To deal with it, many firms have also adopted algorithmic solutions, which involve the use of algorithms that help the platform head identify content that violates a certain set of rules or goes against copyright. This also has flaws at a major level. The concept of accepting this method itself in totality is flawed in nature, as the harm has been incurred, the value of the content cannot be gained back again, so we must implement solutions that are proactive rather than reactive.

If we put a check on the content before it gets published online could play a major role in tackling such situations. This will be a sort of more proactive method in which the circulation of content is controlled before it reaches anyone. As seen above, India has adopted a hybrid method, which involves taking inspiration from both the countries that have implemented more extreme methods to achieve some sort of control over the platform and to regulate its activities.

In the current era, the rise of technological development is tremendous and dynamic, and it is really hard for us even now to find the most suitable solution that would help us to deal with such a high level of advancement, as in the current stage, we do not have a well-developed system that could regulate the breach of laws and copyright online. Many of the nations are completely new to this concept, and they are even now looking at possible solutions that would best fit the current level of technological development and reach in the country. 

In this essay, we have focused on the present legal framework, such as the IT Act 2002, DGCM, Copyright Act, and the Patent Act, that apply to online content and social media content. This allowed us to broaden our view on what are the present legal frameworks that are present that play a crucial role in dealing with present problems, but these frameworks are not sufficient for us to deal with them, as these problems are evolving in nature and the slow implication of legal laws is not sufficient to deal with the issue. 

We have also focused on a very crucial case of Viacom Vs YouTube, in which it helped us to understand how intermediaries often enjoy a certain level of protection when it comes to things being online in the public eye. These intermediate platforms’ owners often are not held liable for content posted online if they have complied with the rules and taken down the content. This acts like a loophole in the current system. This must be rectified immediately, as this could lead to further complications, and it will also allow them to get away from their obligations.

We have also seen how streaming platforms are really evolving in the current stage, and how people are often influenced by content that is posted online. This content that is published online makes people believe that this content is reliable due to a lack of editing and live streaming of events that are occurring. This content that is posted has less regulations compared to traditional content that is published online. Hence, this is a major gap in our current system as we move towards a new world that has advanced technology. The possible solution to this problem could be the implementation of temporal governance, which takes action actively rather than acting after the content has been published online.

• Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media (Yale Univ. Press 2018).

• Office of the Director of National Intelligence, Russian Interference Report (2017)

• WIPO, Copyright in the Digital Environment (2016)

• Shreya Singhal v. Union of India, (2015) 5 SCC 1.

• Regulation (EU) 2022/2065 (Digital Services Act).

• UTV Software Commc’ns Ltd. v. 1337X.to, 2019 SCC OnLine Del 8002.