The Mohak vs ANI first round has completed, and as per the court’s order, the YouTuber has been asked to remove the video, which ANI alleged was defamatory. ANI has also asked for defamatory compensation of nearly Rs 2 crores on the basis that Mohak’s video has damaged their reputation and may have hurt their business.

We will explain later what their exact business model is. It’s not what many people think! The next hearing is in nearly two months, and it will be interesting to witness the development.

Ever since this controversy has erupted, a large section of YouTubers and content creators have been very vocal against the media giant. If you read comments on Reddit or Twitter or even on YouTube, you will find that many creators and viewers believe that the media giant is very wrong in the Mohak vs ANI Case.

While I normally am polite and restrained while criticising someone, I am taking extra measures writing this article to ensure that I do not get unnecessary notifications from ANI for defamatory content.

Understanding What Exactly Is ANI’s Business Model?

ANI is not your typical news channel. It is a news agency, and there is a massive difference. A news agency typically records raw footage of an event with the help of its own cameramen (hired on a permanent or freelance basis). Events of dignitaries and VVIPs like the Prime Minister are usually covered by authorized news agencies only, and ANI is one of them.

The news agency then sells this footage to the news channels, which then run it on their TV channels. Sometimes, those TV channels are allowed to rebrand those videos in their name, and sometimes they are not. That’s how a news agency typically earns money, by selling footage of events which they have personally recorded or acquired legally through licensing from other sources.

Legally speaking, ANI could be right, and why Fair Dealing may not be considered in the Mohak vs ANI Case

What? Didn’t I titled this article as why ANI could be wrong in this case? Then why I am opiniating that ANI is legally right? You see, ANI’s earning lies in selling the recorded footages to the news channel. The TV news channel can do fair dealing commenatary on those footages and they usually commercialize their viewership.

Lets clearly understand first what fair dealing is

As per Indian Copyright Law defined on government website, using copyrighted material can be considered under Fair Dealing when it is done for private or personal use, including research. Fair Dealing can also be considered during reporting of current events and current affairs.

If tomorrow, news channels start to deny monetary subscriptions to a news agency and still use their footage on the basis of fair dealing, then it totally breaks down the business model of a news agency. As you can understand, recording footage is not only labor-intensive but capital-intensive too, and a typical subscription model allows the people involved in that whole process to be compensated fairly.

But!

If fair dealing may not be considered in Mohak vs ANI case, then how will content creators be enabled to critique, provide commentary or analysis on the relevant information?

Tomorrow, news channels may start to seek compensation or a subscription from content creators for using their clips in their content. Then What? Will the creators be expected to pay for few seconds of footage or even for a still image if they include it in their content for explanator or commentary? If that is so, then how the concept of Fair Dealing will exist?

As you can see, if fair dealing or fair usage is prohibited, then it would totally change the way, in a negative way, how creators make their content.

ANI’s Stance on the case

ANI may not have released an official statement on the matter as of now but in one of the tweets, Smita Prakash, (the wife of ANI chairman) and host of the ANI’s podcasts, reposted that “Piracy is not free speech”, reflecting a title of an article related to the same matter covered by BestMediaInfo which strongly opines why Youtubers must pay for new agencie’s content.

While Mohak may have used a few seconds of footage from the news agency in his videos, labelling them as “piracy” appears an overreaction.

Piracy is an act where the product is shown in an unauthorized manner by an unauthorized agency with the sole intent of supplying that product to the consumer at a dramatically cheaper rate or even for free of cost.

An act can be considered piracy when the absence of pirated material would have enabled the owner to earn legitimate and deserving revenue had the pirated copy of it not been circulated in the market.

An article by Finshots, “Is ANI a Bully,” cites The Ken, which mentions that ANI’s subscription goes up to nearly Rs 6 Lakhs + 50% surcharge on digital rights. And this is for per month basis.

The news agency may be asking lakhs of rupees for subscription from YouTubers, but in the case of ANI vs Mohak, can they demonstrate, with data, that they would have earned significant revenue from the footage used by Mohak Mangal, had the YouTuber not used it without permission?

Another point that has to be noted is that Mohak’s usage of those few seconds of ANI’s footage was probably acquired from the videos of a news channel circulating on YouTube. So that footage has already been compensated for by the news channels to ANI. Therefore, its safe to say that Mohak (and neither other Youtuber) have likely not used a footage which was exclusive to only a particular news channel.

This does not mean that ANI has to allow YouTubers to use their footage for free of cost. They are well within their right to sell them through a subscription model. But this is where things may have gone wrong for ANI in this case. Let me explain!

Why could ANI be wrong in this case, even though they may be legally right?

As I said in the above paragraph, ANI is well within their right to ask for monetary compensation from YouTubers who use their footage. However, if you see the sentiment of the majority of netizens, you will realize that not only the content creators but even the viewers are strongly against ANI in this case. And there are many reasons for it

If we consider Mohak’s case, he does not mention any communication between the two parties before ANI sent him copyright strikes. As per YouTube’s policy, three copyright strikes and the channel is gone.

As per the audio conversation revealed by Mohak (in the video, which is now deleted as per the Court’s order), the news agency demanded heavy compensation to sell their subscription but warned him that failing to do so will result in more copyright strikes, which are already in queue. This probably left the YouTuber in a do-or-die situation. You have to understand that in the worst scenario, if Mohak’s channel gets terminated due to copyright strikes, his brand value may allow him to start a new channel and gain subscribers back, but it can take years to gain back that same viewership.

There could be ample things that ANI could have done, and that probably would not have raised a boycott sentiment against them from the majority of netizens.

1. The news agency could have simply asked the YouTuber to remove the video or the portion of the video that contained their footage.
2. Or, they could have claimed revenue generated from that particular video, which contained that footage. The feature of “copyright claim” allows the claimant to do that.
3. Or, they simply could have warned the YouTuber of severe legal repercussions if he uses their footage again without permission or subscription!

Had ANI taken one of those approaches instead, it might have avoided the negative backlash online in this case. In fact, public opinion may have even leaned in their favor.

Standard Subscription Model For Digital Content Creators?

Another thing that is yet to be comprehended is the subscription and penalty charges that ANI is seeking from YouTubers, Mohak Mangal in this case.

As per the audio conversation between Mohak and an ANI employee, the subscription package is roughly around 30 lakhs for one year, which was extended to 2 years later on, as revealed in the conversation.

Another YouTuber claimed that a news agency asked for Rs 15 Lakhs + GST amount when he used two seconds of their footage in one of his videos.

There are many YouTubers who have come forward and revealed the subscription package which was offered to them by ANI in exchange for the removal of copyright strikes!

It’s hard to decipher how the subscription package was formulated by the news agency. Is the cost dependant on per video or on per seconds of the video?

How come is that different Youtubers are demanded different prices for the footage they have used?

Or do they come up with a random number to ask for their subscription based on the number of subscribers and average viewership of the YouTuber?

Has ANI ever laid out a public warning asking content creators to refrain from using their footages in the first place without permission or subscription?

An absence of clear defined and standard subscription charges for digital content creators and Youtubers is a major reason why the content creators are expressing immense frustration on this matter.

Why can there never be a clearly defined Fair Dealing Rule?

Many people may be thinking that a well-defined fair dealing regarding the usage of video footage and other properties can prevent such issues from arising in the future.

However, the question in the first place is?

How will you define the limit of fair dealing? Someone may use an image (of a product or property) in their videos to provide commentary, while the other person may require 10 seconds of footage in order to provide expert commentary or analysis.

The only thing that can be understood is the intent of the third party or content creator. Whether he is really selling an additional value on the existing content (owned by someone else) or is he simply reselling that same content which is disabling the rightful owner to earn legit revenue from that content! But even identifying this intent can be subjective.

From this Mohak vs ANI Case, one can only say that a common ground needs to be reached so that the content creators can use footage and the news agencies don’t feel threatened about their business model at the same time.