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This article has been written by Shubhodip, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho). 

Introduction

“To tackle the menace of film piracy…”. The public comments sought on the Cinematograph (Amendment) Bill 2021, commences with the above quote, and with such quoted objective, The Cinematograph (Amendment) Bill, 2019 was introduced in the Rajya Sabha on the 12th of February, 2019 to amend the Cinematograph Act of 1952 (the “Act”). Upon being subjected to a storm of criticism from all major stakeholders of the movie, and other entertainment industries, the Ministry of Information and Broadcasting (the “I&B Ministry”) announced the incoming Cinematograph (Amendment) Bill of 2021 (the “2021 Bill”). Similar to the previously introduced amendment bill of 2019, the 2021 Bill has been introduced aiming for the same objective i.e., to tackle the menace of film piracy. Despite being fresh to the eyes, it has yet again been shrouded with some controversial statements from various stakeholders of the entertainment industry.  Among the few proposed changes, the Centre had sought public comments on the draft Cinematograph (Amendment) Bill 2021, which proposes to penalize film piracy with a jail term and fine, introduce age-based certification, and empower the Central Government to order recertification of an already certified film following receipt of complaints.

In this article, we would be delving into some of the provisions which have been introduced under the 2021 Bill and also address the underlying issues of such provisions. 

Background

Before looking into the provisions under the 2021 Bill, it would be in our best interest to understand the context and background of this 2021 Bill and its requirements. The Cinematograph Act of 1952 came into force as an act to ensure that films made for public consumption go through certain checks so that they may be eligible for display in theatres and other public displays. The Act also established the board which would be responsible for ensuring such checks and balances i.e., the Central Board of Film Certification (“CBFC”). The CBFC is responsible for providing the necessary permits and certificates of viewing, or if the film requires another round of editing which would be exhibited in the public. As per Section 5A of the Act, the CBFC, upon examining a film, shall provide either of the following certifications to classify the category for viewing the film. The classification has been divided into four categories:

  1. The film is suitable for unrestricted public exhibition (U);
  2. The film is unrestricted but subject to parental guidance for children below the age of 12 (U/A);
  3. The film is only restricted to adults (A); and
  4. The film is restricted towards a class or a profession (S). 

Amendments proposed under the draft Cinematograph (Amendment) Bill 2021

As mentioned hereinabove, the release of the 2021 Bill has attracted several eyes and criticisms from the entertainment industry regarding the changes that have been proposed thereunder. 

Validity of certificate for perpetuity 

As per the current law, a certificate granted by the CBFC shall be valid for 10 years. Under the 2021 Bill, they have extended this period to perpetuity. Although, the intent for making the certification till perpetuity lacks clarity, however, it is to be noted that perpetual validity period was also proposed by a notification released by the Ministry of I&B in 1984 in which the Ministry had exempted validation and revalidation of certificates, thereby the validation of certificates was perpetual.  

Power of the Central Government to re-examine a film for certification

Addressing the most controversial provision under the 2021 Bill, that is the granting of revisionary powers to the Central Government to direct the CBFC to re-examine an already examined (thereby certified) film. Thus, the Central Government will have the power to reverse the decision of the CBFC. Although Courts in India have been against such revisionary powers of the Central Government, the Supreme Court had opined that the Government may overrule or nullify such judicial decisions by enacting appropriate legislation. 

As per the 2021 Bill, this amendment stems from the reasonable restrictions provided under the Constitution of India, thereby films may not be given the green light in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence. However, if we look at the recent years, a large number of films have been restricted from public viewing, without any viable reasoning (although brought to the court under Article 19(2) of the Constitution of India). 

On a parallel note, considering the increasing rise in the popularity of the Over-The-Top (OTT) platforms broadcasting movies, any restriction against viewing of a film in the theatres may not have a major impact, as the viewers or the “public” may be able to watch the ‘banned’ film on any of the OTT platforms. It is important to note that the COVID pandemic has seen the shutting down of movie theatres in the country, and a considerable shift has been made towards the OTT platforms- to the extent that it will take a reasonable amount of time for a shift towards the movie halls. It is also to be noted that there have been no significant regulatory-backed mechanisms formulated for the OTT platforms. However, if in the near future, there are regulations for the operations of the OTT channels, it might pose an issue for various stakeholders in the entertainment industry (especially, the makers of the disputed film, among others) as well as the audience in general. 

This may also lead to certain issues regarding  India’s portrayal of films on the world cinema stage, especially since in recent years, where movies that were ‘banned’ within the country have seemingly performed at par with international standards, if not more, and have been at the receiving end of applause from various international celluloid festivals. Adding to the above, what is even more devastating to the entertainment industry, is that this move comes shortly after the abolition of the Film Certification Appellate Tribunal (FCAT), which was the stakeholders’ resort to appeal if the CBFC had rejected certifying their film. Thus, any appeal to be made will go directly to the High Courts or the Supreme Court, which many of the stakeholders are unlikely to be able to afford. Therefore, the proposed inclusion of this provision seeks the question of its importance at the ground level, as on one hand, it will barely have much of an impact on public viewing, if the same is broadcasted on other platforms, and on the other hand, even if the Government comes down heavily with regulations on the OTT platforms, the Indian entertainment industry will face a huge pushback on good content delivery, loss of business, loss of international acclaim, etc.  

Power to re-certify a film by the Central Government

In furtherance of the above power of the Central Government to re-examine a film, the Central Government has also been given revisionary powers to direct the CBFC to recertify an already certified film. Section 5B of the Act, provides for the ‘Principles of guidance in certifying films’, and it states that, if in the opinion of CBFC, a film is found to be against the interests of the Constitution i.e., it is against the interests of the sovereignty and the integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court, or is likely to incite the commission of any offence, such film shall not be certified for public exhibition.  Although as per sub-section 5B (2) of the present provision, the Central Government has the right to issue directions and principles to guide the CBFC in certifying films, the 2021 Bill gives an explicit right under Section 6 (Revisional powers of the Central Government) as a proviso that the Centre can reverse the decision of the CBFC, and can direct the Chairman of CBFC to re-examine a film already examined. Therefore, even if the CBFC, upon the direction to re-examine the film, deems the film to be valid for certification, the Central Government will have the right to re-certify such film. As highlighted in the above point, eventually this would be a massive pushback for the filmmakers who would be producing an otherwise good film but would get caught up in the tangles of regulations and administrative processes. 

Additional categories to the existing UA certification classifications

The 2021 Bill has also proposed further subcategories for the existing UA certification categories. We have already highlighted the existing UA certifications above. . To further classify and categorize, the upcoming 2021 Bill has been further segmented into age-based classifications. As per the proposed 2021 Bill, the following classifications shall apply:

  1. U/A 7+, 
  2. U/A 13+ and 
  3. U/A 16+. 

Industry experts have commented on the proposed age-based classification to be in consonance with the new IT rules for streaming platforms

Prohibition of unauthorized recording-Insertion of new Section 6AA

One of the primary motives behind the amendment of the Act has been to curb film piracy in the country. Keeping this intent in mind, a section has been proposed to be added as Section 6AA. The section penalizes the recording of any sound or video without the permission of the author of the film. 

“6AA. Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audio/visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof.

Explanation.- For the purposes of this subsection, the expression “author” shall have the same meaning as assigned to it in clause (d) of Section 2 of the Copyright Act, 1957.”

The above section was initially introduced in the 2019 Bill as well with a slight variation. The 2019 Bill had an undefined term “exhibition facility” in the above language. Although the term was vague and undefined, the 2021 Bill did not do much justice in replacing it with another ambiguous terminology “in a place”. Moreover, the amended language fails to define “author”, which, considering it has been defined under the Copyright Act, 1957 such definition may be applicable. 

Penalties for film piracy

Concluding our analysis by looking at the penal provisions prescribed under the 2021 Bill, an article correctly quoted the punishments to be “Disproportionate Criminalization”. The penalties for contravention of unauthorized recording have been prescribed as imprisonment ranging from 3 months to 3 years, and/or a fine which is not less than 3 lakh rupees which may extend up to 5% of the audited gross production cost of the film. Not only does the change in penalty amount and additional penalization seem lop-sided, it is also a wasted opportunity for the amendment to bring about a crucial change. Even if we take into account that 3 lakh rupees minimum fine is not an exorbitant amount, the additional penalization percentage of the production cost would be over the top and uneven (both morally and ethically) for the offender; especially if it is a high-budgeted film and the punishment is merely for a minor clip of the film.

Conclusion

The 2021 Bill came with promises and aimed to address issues that were looming large in the entertainment world. However, upon its in-depth analysis, it can be concluded that it was a spoilt opportunity by the legislature. Film piracy is not new to the world of crimes relating to the entertainment business, especially with illegal websites and download portals contributing largely to the crime, and thereby it is increasingly difficult to prevent such crimes from occurring. Although the laws preventing and penalizing crimes of film piracy existed before, they have not been able to successfully counter them. What would have been expected from the amendment 2021 Bill would have been novel ways to tackle the issue of film piracy rather than modifying the timeworn mechanism of penalization. Even more so considering, as highlighted above, the crime of film piracy is more prominent in the cyber world during this digital age. Considering the backlash received from the stakeholders of the entertainment industry, it would be wise for the legislature to consult the stakeholders or take their viewpoint in formulating the laws, and also modify the existing ways to address the problem in the cyber forums as well. 


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