This article has been written by Tannu Gogia, pursuing a Diploma in International Business Law from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

There are many ways one can relate to movies or films. For someone, they are there to make you laugh or cheer, to entertain, to escape from the harsh realities of our lives, to learn the culture of different worlds and to work as a time machine to relive past events and see what the future has to offer. But films can also invoke negative emotions in a person, like anger, hatred, vengeance, violence, rape, etc., as the film has the power to change perceptions, beliefs or opinions. As a matter of course, the Cinematograph Act, 1952, was enacted by the parliament to filter out those movies that appeal to strong emotions and give green light to those that are socially acceptable.

Aside from invoking happy emotions in individuals, inspiring them, teaching them the importance of love, friendship, and the sacrifice made by the war heroes, the movies also contribute to the fundamental aspects like supporting the economy, igniting spirit of innovation and filling up the employment gap, but piracy or making of infringing copies of films triggers harm to the economy, widening of employment gap, dampening of innovative spirit, loss of income, etc. Though India may not have ranked top in the IP index, ever-present pirating activities made India rank 3rd globally based on the number of visits made to illegal video streaming websites in 2022.

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One of the reasons for the increased activities of IP theft or piracy is lenient punishment for such actions, so to curb this menace, many amendments have been proposed and accepted by both houses of parliament in the Cinematograph Act, 1952, in the form of the Cinematograph Amendment Bill of 2023.  

Changes which have been made to stop such illegal actions

Extending the protection of the Copyright Act to the 2023 Bill

The bill introduced two more sections, Sections 6AA and 6AB. These two sections prohibit a person from not only using an audio-visual recording device to make, transmit, or exhibit an “infringing copy” of a film or any part of it from a place that has been licenced to exhibit the film but also from attempting or abetting such acts.

The words “infringing copy”, which have been defined under Section 2 (ddd) of the Bill, have been given the same meaning as “infringing copy” under Section 2 (m) (ii) of the Copyright Act.

Infringing copy means a copy of the film made on any medium using any means

Punishment for piracy

As per Section 7 (1A) of the Cinematograph Amendment Bill, any person who contravenes Sections 6AA and 6AB shall be punished for a term which shall not be less than 3 months, but it may extend to 3 years, and it shall be accompanied with a fine which shall not be less than three lakh rupees, but it may extend to 5% of the film’s gross production cost, against those found making pirated movies, which shall not be less than a few crores.

How do movies get pirated

To answer this, there are two simple ways: the first is when someone goes into the theatres with their phone, as phones are not restricted, and films it, and another way is when someone after the production of a movie steals a copy of the film or when a copy of the movie is sent to reviewers or the sensor board for certification purposes and gets leaked by someone.

But the question is: how will it be proven which person made and distributed the pirated or infringing copy of the film? Is consumption of such infringing content also punishable?

Invisible watermarks: I came to know that every single copy of the film that is distributed to theatres contains an invisible watermark. If someone records the cinematograph film from a theatre and later distributes the recorded content online, then the producer can check the recorded version, and after analysing it, he can figure from which cinema or theatre the particular ‘infringing copy’ has been recorded. This process makes the investigation much easier, and the punishment is to send a message that this kind of IP theft will not be tolerated.

Punishment for consumption of pirated content

As far as the consumption of the illegally copied version, the leaked copy of the film, or unlicensed content is concerned, consuming it or watching it online is not punishable, but downloading such content has the effect of making you the distributor of that film. The Bombay High Court has also confirmed that watching pirated content is not illegal.

Age-based certification

Criminal litigation

The purpose of providing age-based certification under Section 5A is to distinguish which audio-visual content is suitable for different categories of people, Section 5A, under the Cinematograph Act of 1952, provides 4 categories of ratings they are, category U, which means that the content of the film is suitable for everyone, whatever will be the age of a person, he can go the cinema and watch it, another category is U/A, it means that file can be viewed by everyone but for children or minors it can only be watched under adult supervision, next is A category, under this only adult, who are above the age of 18, are allowed to enter into the cinema, where the film is being exhibited and another category is S category, it means the film is not for public exhibition but restricted to a specialised audience, the suitable example for this can, the videos for doctors for very advanced surgery. 

But, in 2016, a committee was set up to create a comprehensive structure for film certification under the guidance of Shri Shyam Benegal, hence the Shyam Benegal Committee. The two of many objectives set for the committee were to protect children and adults from damaging or inappropriate content and to provide such age-based classification so that parents would be able to make effective viewing decisions. It recommended making the categorization of the film more specific by splitting the U/A category into sub-categories of U/A 12+, U/A 15+, and A to further break into A and AC (Adult with Caution).

Later in 2021, people from different arenas, be it civil society, trade organizations and associations, or filmmakers, demanded that OTT platforms like Netflix, Amazon Prime, or Hotstar classify their content or movies into different categories and demanded government intervention, so the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, required the OTT platforms such as Netflix, Amazon Prime, or Hotstar to self-classify their movies into U, U/A 7+, U/A 13+, U/A 16+, and A. These rules were framed in light of the difference in viewership of a movie in theatres or on television in comparison to watching the content on the Internet.

So, under the current Cinematograph Amendment Bill, 2023, the four categories, U, A, S, and U/A, are split into U/A 7+, U/A 13+, and U/A 16+. This move has been made keeping in mind the IT Rules, 2021, on age-based certification provided for streaming platforms.

Separate certification for the exhibition of films on TV and ‘other media’

The newly substituted Section 4(3) of the Cinematograph Amendment Bill, 2023, empowers the board to sanction a film whose public exhibition is restricted to adults or specific members of any profession with a separate certificate for exhibition on television or such other media as may be prescribed.

Certificate period amendment under Section 5A(3)

Under the Cinematograph Act 1952, any certification that will be provided by the board to make the film audience worthy shall be valid throughout India ‘for 10 years’ as provided under Section 5A(3), but in the new Cinematograph Amendment Bill of 2023, after the amendment of Section 5A(3), the term ‘for a period of 10 years’ has been omitted from the 1952 act, so it conveys that now there will be no time limit for the expiry of the certificate granted to the films; it shall remain valid for an indefinite period.

Removal of the revisional power of the Union Government

The Cinematograph Amendment Bill, 2023, has omitted Section 6 (1) of the Cinematograph Act, 1952, which provided revisional power to the Union Government, means permitting the government to take decisions related to the certification of the film, which threatens to weaken the independent status of CBFS by subjecting a quasi-judicial body to the scrutiny of the executives.

But if you rifle through the previous Cinematograph amendment bills like those of 2019 and 2021, then you will observe that even after the judgement of the Apex Court in Union of India vs. K.M. Shankarappa (2000), which held Section 6(1) as unconstitutional, repeated attempts have been made time and again to suppress the decision of a quasi-judicial body regarding certification without appropriate legislation.

Case laws

Pratibha Naitthani vs. Union of India and Ors. (2006)

In the case of Pratibha Naitthani vs. Union of India and Ors. (2006), the petitioner filed a writ petition before the Bombay High Court, stricken by the telecast of adult and obscene films telecasted on electronic media, and even after an order passed by the court to restrain such activities, TV channels continued to telecast films rated ‘A’ by the CBFC.

So, the issue raised here was whether cable operators have the liberty and free will to telecast movies that were certified as ‘A’ by the CBFC.

Rule: Section 6(1)(o) of the Cable Television Network Rules, 1994, states that no programme should be carried out in the cable service that is not suitable for ‘unrestricted public exhibition’ (universal exhibition); this expression ‘unrestricted public exhibition’ has the same meaning as used in Section 4(1)(i) of the Cinematograph Act, 1952, so it means that the films that don’t have the sanction for ‘unrestricted public exhibition’ can’t be telecasted by cable service providers.

Here, the Bombay High Court held that by Rule 6 (1)(o) of the Cable Television Network Rules, 1994, the adult viewer’s right to view adult films is not taken away; he will always have a choice to view such films in a cinema hall or on private TV using DVD or VCD, as there is no restriction on these modes under the law. So, the court directed the cable operators and cable service providers that they shall not provide cable service for films that are not sanctioned for ‘unrestricted public exhibition’ by the CBFC. So, the SC passed an injunction order stating that all TV channels are prohibited from telecasting any adult TV programme without a suitable certification from the CBFC.

K.A. Abbas vs. The Union of India & Anr. (1970) 

In the case of K.A. Abbas vs. The Union of India & Anr. (1970), the petitioner is a journalist, writer, and director of cinematograph films. In the year 1968, he made a documentary named A Tale of Four Cities, depicting the contrasting behaviour of the rich and the poor, as well as a few scenes of a woman receiving money for sexual favour and another person snatching money from the woman, depicting the exploitation of a woman by a man, etc. The petitioner applied for a ‘U’ certificate for his documentary to the Board of Film Censor for ‘unrestricted exhibition’ of the film, but he received an ‘A’ certificate as the film was not suitable for ‘unrestricted public exhibition’, but it was suitable to exhibit the film for adult viewers. Later, the revising committee also gave the same decision, but the petitioner explained that the reason behind the film is just to depict the stark contrast between the living standards of rich and poor and also the agony of women, who become prey to desperation and poor circumstances, and asserted that there is no obscenity in the film. The board didn’t alter its decision, and the petitioner appealed to the central government, but the central government ordered the petitioner to make some modifications if he wanted to receive the ‘U’ certificate.

He challenged the constitutional validity of the Cinematograph Act, 1952, and Section 62, under which the central government could revise the decision of the CBFC, among other issues related to the pre-censorship of a movie and the absence of an appeal against the decision of the CBFC to a court or tribunal.

Here, SC rejected all other contentions of the petitioner except one, which is that the Central Government can’t be the final authority to decide the fate of the certification of the film. As K.A. Abbas had appealed to the Central Government to get ‘U’ certification for his film, the SC held that only experts sitting as tribunals deciding matters quasi-judicially would be eligible to hear the appeal, not the Union Government, functioning through one of its secretaries.

But, even after introducing the appeal provision and constitution of the Film Creation Appellants Tribunal (FCAT) through the amendment with effect from 1983, the Union Government still retained its revisional power under Section 6 over the certification decisions already taken or which were still pending before the CBFC or FCAT.

Later, to eradicate this problem permanently, the amended Section 6 of the Cinematograph Act, 1952, was challenged in the case of K.M. Shankarappa vs. Union of India. In this case, the Karnataka High Court held the revisional power of the government as unconstitutional because it breaches the concept of separation of power under the constitution of India; otherwise, it would lead to the executive rendering judgement on a problem, which is not the task of the executive, and it would amount to a violation of the basic structure of the constitution. So, if CBFC refuses to grant a certificate or directs an applicant to make certain modifications as a condition for certification, then the appeal against the decision of the board lies with the Appellate Tribunal.

Later, when the case went in appeal, Union of India v. K.M. Shankarappa (2000), the SC upheld the decision of the Karnataka High Court and held that once a film has been given a certificate, the power of revision would no longer be exercisable by the government in respect of such a film; otherwise, it would amount to a review of a decision of a quasi-judicial body by the executive.

Conclusion

With the ever-changing environment, the needs of society also change, which aspires to create different inventions and innovations to satisfy those ever changing and growing needs. Until 2005, when sales of films used to take place through cassettes and optical discs, it has now shifted to online streaming platforms. Similarly, earlier, piracy was carried out by way of CD or DVD, but now, with the emergence of the Internet, things have switched to piracy being executed in cyberspace. Henceforth, to suppress such illicit conduct, the change in the Cinematograph Act of 1952 was long overdue. So, keeping our fingers and toes crossed, we hope that this change can put the fear of God in pirates and aid our film industry in producing content without the fear of losing income to piracy.

References

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