Copyright law must strike a fine balance between incentivising creators and ensuring that new creative works can be built on the back of existing works. In the context of modern online content distribution, this may call for an amendment of existing laws.
This is a link-enhanced version of an article that first appeared in the Mint. You can read the original here. For the full archive of all the Ex Machina articles, please visit the website.
When YouTuber Mohak Mangal spliced four seconds of Asian News International (ANI) footage into one of his video posts, he did not expect to be called upon to pay ₹50 lakh or else risk having his channel deleted. Faced with the threat of losing millions of subscribers, he did what he does best. He created a video on the extortion he believed he’d been subject to.
As his post gained traction, other creators came out with stories of their own, claiming that they too had been asked to pay amounts ranging from ₹15 lakh to ₹50 lakh. In the face of escalating public outrage, ANI chose to sue, claiming that Mangal’s allegations of extortion were defamatory, and all it had done was lawfully exercise its intellectual property rights.
While the court will rule on the defamation allegations, of far greater significance are the intellectual property issues that have been brought to the fore. Unless we amend our existing laws, our creators will be unable to build on the work of those who came before them.
It is well-understood that there is no copyright on the news. After all, what is news other than a collection of facts over which no individual or organisation can claim exclusive rights? But when the news is presented as video footage, the manner in which it has been laid out, the specific form and style in which the visuals are shot and so on are all expressions of creativity. This is entitled to protection under copyright law, and if Mangal did in fact use ANI footage without a licence to do so, it would, on the face of it, amount to a copyright violation.
But is it that simple? The law of copyright strives to strike a delicate balance—to incentivise creativity on one hand, while, on the other, ensuring that existing creative works can serve as the foundation for even more creativity. It achieves this over the long term by offering creators a temporary monopoly over their works on the condition that they will eventually return to the public domain.
Even in the short term, the copyright monopoly is not absolute. Recognising the need to allow comment, criticism and creative re-interpretation, certain “fair dealing” exemptions have been introduced into the law to permit the use of copyright-protected works where this would result in their transformation into new works that add fresh meaning or expression. In the context of musical works, this is what allows artists to remix existing songs in new and imaginative ways. And in the context of education and research, it lets academics cite other papers.
Video posts of the kind Mangal creates use excerpts from existing video footage to build a larger narrative that typically reviews or criticises existing positions. In almost every instance, this is exactly the type of transformative, socially beneficial outcome that fair-dealing provisions were designed to enable. Why, then, was Mangal being threatened with not only having this video taken down, but also the deletion of his entire channel?
The answer to that question lies in the peculiar nature of online video distribution and the manner in which sites such as YouTube are constrained to deal with infringement allegations.
As of April 2025, over 20 billion videos have been uploaded to YouTube. A good proportion of these most likely infringe the copyrights of someone or the other. Had it not been an ‘intermediary’ under the US Digital Millennium Copyright Act (DMCA), YouTube would have been liable for contributory infringement in each such instance. But since it is, it can avail immunity from prosecution.
To claim this immunity, YouTube must have in place a notice and take-down system that rights holders can use to complain of infringement. That is why it has implemented a ContentID system, which generates digital fingerprints of copyright works against which allegedly infringing works can be compared. Once a match is found, copyright owners can choose to block, monetise or track that content, or issue what is known as a ‘copyright strike.’ Any channel that receives three strikes is, under YouTube’s policies, liable for deletion.
These policies were designed to comply with provisions of the US DMCA. Any creator who receives a take-down notice can, under that law, file a counter-notification that requires the platform to restore the content in ten days unless the complainant has filed a court order to restrain the allegedly infringing activity. Indian law offers no such mechanism for automatic restoration. As a result, Indian content creators faced with the three-strike rule have no meaningful avenue for redressal. Even before they contest the strike, they could find that their channel has been deleted.
YouTube standardised its policies to ensure that all users, no matter where in the world they may be, are subject to the same rules. While this in itself is not a cause of concern, when invoked in the context of Indian intermediary liability law, it diminishes the ability of Indian content creators to defend their legitimate use of content under the fair-dealing exemptions available under Indian copyright law.
If we truly want to encourage content creators, we need to amend our intermediary liability law to include a DMCA-style counter-notice window. At the very least, this will offer them a chance to demonstrate how their content qualifies under the fair-dealing exception.
After all, we need innovation, not intimidation, to drive our creative industries.
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