Madhav Singh Bisht is a third-year B.A. LL.B. (Hons.) student at Dharmashastra National Law University, Jabalpur. His academic interests lie in Intellectual Property Law, Competition Law, Technology Law, and Data Privacy. He actively engages in legal research and writing on emerging issues in these fields.
Ananya Gupta is a third-year B.A. LL.B. (Hons.) student at Dharmashastra National Law University, Jabalpur. She has a keen interest in Arbitration, Commercial Laws, and Dispute Resolution, and is actively involved in legal research and writing on contemporary developments in these areas.
Over the past two decades, India has transitioned from traditional media to over-the-top (OTT) platforms, with services like Netflix, Amazon Prime, and Disney Hotstar dominating the landscape. For the first few years, consumers regarded OTT platforms as a luxury. However, since the COVID-19 lockdown, it has largely evolved to become a necessity, owing to the wide range of content, ease of access, and smartphone adoption with high-speed internet connectivity.
The OTT ecosystem is based on exclusivity, wherein they acquire the intellectual property and broadcasting rights of the content. In recent times, this marketing setup is not just limited to the entertainment sector but is showing massive growth in the sports industry too, such as Zee acquiring the broadcasting rights of the FIFA World Cup 2026. Due to the increase in these exclusive right agreements between the platforms and the owners of the content, concerns have arisen regarding subscription prices, public screening, and market dominance of a platform, especially when they have the exclusive right to high-demand content like blockbuster movies, award ceremonies, and major sporting events. It, thereby, leads to limiting consumers’ access to alternative sources.
This arrangement raises an important question: whether the current framework laid down under the Indian Competition Act, 2002, adequately deals with the concerns arising in rights-driven digital markets. Using Zee -FIFA deal as a reference, this blog examines whether the existing competition law has the necessary conceptual and procedural tools to address and prevent the abuse of temporary dominance in the OTT era.
The Existing Framework: Sections 3 and 4 of the Competition Act, 2002
Under the Indian jurisprudence, an exclusive agreement between the parties isn’t per se illegal but is subject to conditions laid down under the Indian Competition Act,2002. Section 3 of the Act governs anti-competitive agreements, while 3(3) completely prohibits horizontal agreements; vertical agreements are governed by 3(4). It specifies that exclusive distribution and supply agreements are only anti-competitive if they cause an appreciable adverse effect on competition, but 3(5) provides some immunity in the context of intellectual property, allowing exclusive broadcasting agreements like the Zee -FIFA deal to bypass Section 3.
Regardless of the immunity under Section 3, platforms might still be involved in anticompetitive practices that attract scrutiny under Section 4 of the act. It prevents abuse of a dominant position by anybody in the relevant market. “Dominant position” refers to a position of strength enjoyed by an enterprise that allows it to operate freely, irrespective of the competitive forces conquering the relevant market, or provides an unfair advantage over competitors and customers in the relevant market.
To establish a position of dominance, it becomes necessary to determine the relevant market since abuse of dominance cannot be established in abstract. The relevant market differs from good to good based on product and geographical area. It is determined to analyse the substitutes available for the goods offered by the enterprise in a dominant position. This is where the traditional analysis fails, owing to the absence of a lawful substitute for streaming the FIFA World Cup 2026.
Temporary Dominance: How OTT Exclusivity Defeats Traditional Antitrust Analysis
In competition law, high pricing does not automatically amount to abuse of dominance. However, when an exclusive rights holder acquires 100% market share, it provides them with an unchecked ability to dictate terms. This collides with a blind spot that the current Indian competition framework encapsulates: temporary dominance.
The CCI’s framework is deeply rooted in industrial-era assumptions, assessing dominance in terms of enduring structural power for decades. In this context, dominance is defined not only by size but also by its durability. The traditional competition law model, assumes a dominant position will continue to exist, all while the entire procedure of Section 4, from investigations to interim reliefs, is enforced. The exclusive OTT streaming rights challenge this model by creating a time-bound monopoly. It involves a market power that is absolute and unassailable but has a built-in expiration period. By the time a traditional competition law investigation is completed, the exclusivity period may end, leaving the remedies ineffective.
Temporary dominance pose significant challenge when the exclusive right holder starts to exercise control through pricing decisions. Section 4(2)(a)(ii) of the Competition Act, 2002, explicitly prohibits a dominant enterprise from imposing unfair or discriminatory prices. Yet determining when pricing becomes exploitative remains a significant challenge and OTT platforms acquiring the exclusive streaming rights add to the conundrum. Through exclusivity, the platform is not merely a distributor, but it becomes the sole lawful gateway to the content. In practical terms, it transforms an intellectual property right into a temporary but absolute market bottleneck. This exclusivity affects the bargaining power of the consumers. They must subscribe to the platform on the terms offered, leaving no room for a meaningful substitute. This consequence becomes more visible when commercial businesses wish to stream exclusive content, such as the FIFA World Cup, in public places. Unlike a competitive market, while acquiring a separate license, they face an aggressive binary choice: either to accept the platform’s terms or lose access to the content altogether. The exclusivity agreement, therefore, enables the platform to dictate the conditions of access in a manner rarely seen in competitive markets.
The difficulty, however, lies in ascertaining when legitimate monetization turns to exploitative conduct. The Competition Commission of India (CCI) has traditionally been reluctant to act as a price regulator. The underlying reasoning is that excessive prices would eventually attract new competitors into the market and rebuild the competitive discipline. Hence, the market is largely considered self-correcting. This assumption considerably breaks down when exclusive digital markets are in question. Here, the barrier to entry is legally imposed. No rival platform can enter the market during the subsistence of the agreement. As a result, normal corrective measures of antitrust suspend operation. Consumers and commercial users remain locked into a single source of access regardless of the price imposed.
This creates an enforcement gap within Indian competition law. While Section 4 prohibits unfair pricing, the exclusive rights arrangement undermines the assumption that markets are self-correcting. At the same time, the CCI’s reluctance to assess price fairness leaves limited scope for intervention. Consequently, the platform enjoying the temporary dominance possesses substantial freedom to impose elevated subscription fees, premium commercial license charges, or other access-related costs without competitive constraints.
Rethinking the Framework: Reform Proposals for Digital and Event-Driven Markets
The exclusive rights arrangement is not inherently anti-competitive; it serves legitimate commercial interests to maximise the value of premium content. The problem arises when such exclusivity creates a temporary monopoly over the non-substitutable content while existing competition law remains too slow or ill-equipped to respond effectively. The traditional pace of investigation under competition law remains too slow while responding to the transient nature of the disputes. To address this gap, Section 33 could be strengthened. CCI can establish a dedicated fast-track framework for complaints involving exclusive access conditions, commercial licensing practices, or exploitative pricing, with interim relief available within days rather than months. If competition law has to remain relevant, it needs to adapt to the digital and event-driven markets. The legislature can address significant challenges through its intervention. The current framework under Section 19 evaluates various factors to determine dominance in enduring markets. An amendment to the same, recognising markets arising out of the exclusive rights arrangement as a determinant to temporary dominance, will enable CCI to regulate.
The second reform should focus on the conduct rather than the structure. In markets driven by exclusive rights, structural remedies such as divestiture or market separation would be impractical. Hence, directing regulatory attention towards the terms on which access is provided can be a probable solution. For the same CCI, in coordination with the Telecom Regulatory Authority of India (TRAI), can develop principles governing public screenings and commercial exhibition licenses. The principles should ensure that pricing structures, access conditions, and compliance requirements remain transparent, non-discriminatory, and objectively justified. One such can be similar to telecommunications regulation—Fair, Reasonable, and Non-Discriminatory (FRAND)-style access principles for commercial exhibition licenses. This approach will preserve both the right-holders’ ability to commercialize valuable content and maintain safeguards against unreasonable pricing. The competition law needs to protect intellectual property instead of providing leverage to impose unwarranted conditions.
Additionally, like the European Union’s Digital Market Act, which makes digital markets more stable and fairer, there should be a distinct law for such digital markets in India. Furthermore, the DMA is subject to Article 102 of the Treaty on the Functioning of the European Union, which prohibits abuse of dominance in Europe, which is very similar to Section 4 of the Indian Act. The adoption of the proposed Digital Competition Bill would enable the Competition Commission to address such issues in a more effective way. Finally, the Indian Competition Commission should adopt a more proactive approach in cases of excessive pricing, like the European Commission. The European Commission’s recent examination of FIFA World Cup pricing shows the importance of timely intervention in cases of temporary monopolies.
Conclusion
Ultimately, the rise of OTT platforms reveals a broader challenge for modern competition law. Markets are becoming largely digital, transient, and event-driven. Yet, the enforcement mechanisms stay obsolete, still catering to the stable form of markets. The FIFA World Cup broadcasting arrangement illustrates this tension. Although the tournament will last for a limited time, consumers are required to purchase a subscription extending beyond the event’s specified duration, while commercial setups also face separate licensing requirements. The concern is not merely the existence of exclusivity but the concentration of pricing and access decisions in the hands of a single enterprise, whose sole objective is commercialising the same. Such situations expose the limitations of competition law. These limitations of the Indian Competition Law in the digital era can be addressed to make it a more effective and up-to-date system for the current on-ground realities by adopting a specific digital competition regulation and making certain reforms in the existing legal framework itself.
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