-Kiran Sharma*
Abstract
Film piracy, particularly the distribution of pirated versions of films via the internet, causes enormous losses to the film industry and the government exchequer. In most cases, piracy begins with illegal duplication in movie theatres. There are currently no enabling provisions in the Cinematograph Act, 1952 to combat film piracy, necessitating the inclusion of such a provision in the Act. To tackle this menace of film piracy, Ministry of Information and Broadcasting introduced The Cinematograph (Amendment) Bill. The bill proposes punishing film piracy with an imprisonment and a fine, instituting age-based certification, and empowering the central government to order recertification of a previously certified film in response to complaints. Few provisions have received a major backlash from the film industry as it gives more power to the central government and have also added a layer to the securitization in films to get approval for certifications. Now it is matter to see whether this bill reduces the piracy or creates more problem to the industry people?
1. Introduction
Cinema is a form of artistic expression that expresses ideas, tales, and opinions. Few other forms of communication have the same amount of widespread effect and presence in our daily lives as the internet. ‘Raja Harishchandra’, India’s first indigenous feature film, was made and premiered in 1913. India is one of the world's largest film makers, and the film industry in India gives employment opportunities to millions. With technology and sound recording improving constantly, first musicals were released in 1930’s. This was the beginning of songs and dance in cinema.
In 1918, the first Indian Cinematograph Act was passed, placing Censor Boards (as they were known at the time) under the control of Police Chiefs in Madras, Bombay, Calcutta, Lahore, and Rangoon. After independence, regional autonomy was established. When the Bombay Board of Film Censors was founded, censorship was removed. Sanctioning of cinematograph films for exhibition has been included in Entry 60 of the Union List (List-I) of the Seventh Schedule of the Constitution of India. However, cinemas subject to the provisions of List-I Entry 60 are included in State List Entry 33 (List-II). As a result of the Constitution’s provisions, the Union Government has the authority to legislate in subjects relating to the sanctioning (also known as certification) of documents. In India, state legislatures have the authority to enact laws governing the showing of films, and state legislatures have the authority to enact rules governing the licensing or display of films.
The Parliament also has the authority to enact legislation governing exhibition in Union territory. The Cinematograph Act, 1952 (37 of 1952) was adopted by Parliament on March 21, 1952, in order to provide for the certification of cinematograph films for display and the regulation of cinematograph exhibits. Over time, the medium of cinema, as well as the tools and technology involved with it, as well as its audience, have seen significant changes. After the enactment in 1952, the Act has been amended eight times.
2. A brief background of the Cinematograph (Amendment) Bill 2021
Recently, the Ministry of Information and Broadcasting announced the Cinematograph (Amendment) Bill 2021 (hereinafter referred to as ‘the bill’) which has received severe backlash from the film industry. One of the major concerns in this bill is to combat the film piracy, the enabling provisions related to which is currently neither in the Cinematograph Act of 1952 nor in the Cinematograph (Certification) Rules of 1983. Film piracy, particularly the dissemination of pirated versions of films on the internet, causes substantial losses to the film industry and the government exchequer, according to the Ministry of Information and Broadcasting. The most common source of piracy is illicit duplication in movie theatres.
The Ministry of Information and Broadcasting has informed the few other related Ministries to amend the Cinematograph Act, 1952. On 03.01.2019, the proposed modification was placed on the Ministry’s website, and on 08.01.2019, the Press Information Bureau (PIB) issued a press release seeking opinions.
Various film industry bodies, including the Motion Pictures Distributors Association, The Film & Television Producers Guild of India Ltd., the South Indian Film Chamber of Commerce, FICCI, Producers Guild of India, and others, have urged the Ministry to include strict penal provisions in the Cinematograph Bill. The Union Cabinet approved the proposal to amend the Cinematograph Act, 1952 and introduce the ‘The Cinematograph (Amendment) Bill, 2019’ during its meeting on February 6, 2019.
The Committee published a Press Communique on December 22, 2019, in the course of its assessment of the Bill, asking views/suggestions from experts/stakeholders/organizations/the general public on the proposed revisions contained in the Bill. The Committee received and reviewed various Memoranda in response to this.
Thus, based on the written and oral depositions of both official and non-official witnesses and inputs received from the Memoranda received from other sources, the Committee examined the Bill thoroughly and given their observations/recommendations as insertion of two new section.
In 2013, an Expert Committee chaired by Justice Mukul Mudgal was formed to look into the concerns of certification under the Cinematograph Act of 1952. In 2016, a new Committee of Experts was formed under the chairmanship of Shri Shyam Benegal to develop wide certification guidelines within the scope of the Cinematograph Act and Rules. The Ministry has looked into the recommendations given by both committees of experts, and efforts have been taken to assess all pertinent concerns through internal reviews of the Act in cooperation with various stakeholders.
The 9th Report on Cinematograph (Amendment) Bill, 2019 was delivered in the Rajya Sabha and Lok Sabha on 16.03.2020 by the Standing Committee on Information Technology (2019-20). The Standing Committee on Information Technology’s observations/recommendations in the Report have been studied, and it is suggested to adequately alter the sections in the Cinematograph (Amendment) Bill, 2019 based on the Committee’s recommendations.
3. Analysis of the provisions in Cinematograph (Amendment) Bill 2021
The Ministry of Information and Broadcasting intends to introduce the Cinematograph (Amendment) Bill, 2021, which will improve the process of certifying films for display and combat piracy. While the new bill was written to address a variety of difficulties that hamper the film industry’s growth, it was met with criticism from a number of directors and actors. Filmmakers and performers argue that the drafted bill’s proposed revisions will severely restrict their freedom of expression and render them helpless in the hands of the government.
Following are the major modifications proposed after internal evaluations of the Act, in cooperation with many stakeholders, which has received a major backlash:
a) In the existing Act under section 6, the Central Government has been empowered to call for the record of proceedings in relation to certification of a film which is pending or has been decided by the Board and pass any order thereon. This means that if the Central Board of Film Certification (CBFC) violates section 5B (1) (which deals with the principles for certifying films), the Centre can overturn the CBFC’s judgement. In addition, the bill proposes to insert a proviso into subsection (1) of section 6. It further specifies that, if deemed necessary, the Central Government may direct the Chairman of the Board to re-examine a film before certifying it for public screening.
There is already a statutory body for the purpose of the censorship which was itself established under the Act for issuing the certification. The bill will curtail the autonomy of the Censor Board. This will add a layer of another censorship and will make the process delay which will lead into huge losses to the production houses. Because of the interference of the government, many scenes or dialogs which could be part of the film might not be included in the first place. Therefore, will restrict the craft and creativity of an artist. This could in turn, limit the freedom of speech and expression to a large extent. The provision also gives the power to the central government to revoke the certificate once approved. As we all know, the government might change few years later and if the next government have a different view, then it will also create an issue. The re-introduction of revisionary powers of the Central government stands in direct conflict with the Supreme Court ruling in Union of India v. KM Shankarappa, which found such powers to be encroaching into the domain of judicial review. The Court held that “Words contained in the main portion of Sub-section (1) of Section 6 of the Act and in the first proviso thereto are opposed to the basic structures of the Constitution. As such, the words “or has been decided by” and “or as the case may be decided by the Tribunal” contained in the main portion of Sub-section (1) of Section 6 and the words “or to whom a certificate has been granted as the case may be” as contained in the first proviso to Section 6(1) of the Act, are unconstitutional as the same are violative of the basic structures of the Constitution.” The proposed amendment is an attempt to overutilize the powers provided under Article 19(2) of the Constitution.
b) Film piracy, particularly the distribution of pirated versions of films over the internet, costs the film industry and the government a lot of money. The most common source of piracy is illicit duplication in movie theatres. There are currently no enabling measures in the Cinematograph Act, 1952 to combat film piracy, necessitating the inclusion of such a clause. Therefore, the following amendments are proposed in the Draft Bill:
i. Insertion of new section 6AA - Prohibition of unauthorized recording “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 sub-section, the expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957.”
ii. Insertion of new sub-section 1A in section 7 – Penalties for contravention of this part 7(1A). “If any person contravenes the provisions of section 6AA, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to three years and with a fine which shall not be less than three lakh rupees but which may extend to 5% of the audited gross production cost or with both.
Provided also that, any act mentioned in Section 52 of the Copyright Act, 1957 (Act 14 of 1957) is not an infringement of the provision of Section 6AA of this Act.”
The amendment bill’s Section 7(1A) specifies the consequences for violating Section 6AA, which include imprisonment for 3 months to 3 years and/or a fine of 3 lakh rupees, up to 5% of the film’s audited gross production cost. Such a provision is problematic on two points. To begin with, by tying the fine to the film’s gross production cost, the provision has broadened the scope to include arbitrary standards in the case of high-budget films. The clause also fails to include the reasonable link established by copyright law to prevent first-time offenders from receiving the same punishment as repeat violators. This would effectively result in instances where first-time offenders face the same punishment as repeat offenders, which is both morally and ethically incorrect. The offence of piracy is discussed in Section 63 of the Copyright Act. The restrictions are significantly more rigorous than the TRIPS Agreement requires in terms of criminal penalties for copyright infringement. For deliberately infringing copyright, the penalty under Section 63 is currently 6 months to 3 years in prison and/or a fine of 50,000 to 2 lakh rupees. However, due to the non-obstante provision before Section 6AA, the proposed additions will override this, increasing the severity of the proposed amendments.
Moreover, the expression “use any audiovisual recording device in a place to” in proposed provision 6AA would include all audio recording devices including the mobile phones. The words would create a deterrent for all movie goers to carry their mobile devices to cinema hall or use their device for communication/conversation even in emergent circumstances. The purpose of the amendment is to prevent unauthorized recording of the film rather than prevent use of any audiovisual device.
Conclusion
The new Cinematograph (Amendment) Bill, 2021, seeks to undermine the Supreme Court’s decision and restore its revisionary powers. By adding another level of censorship, the Central Government will have enormous powers. The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, was passed by the Central Government this year, abolishing the Film Certification Appellate Tribunal (FCAT). The proposed bill also attempts to make this ordinance into normal law by enshrining it in statute. FCAT was created with the primary purpose of resolving matters relating to film certification. With its abolition, filmmakers will have to go to the High Court if the Censors Board refuses to offer certification or only provides partial approval. High Courts will be burdened even more as a result of this and film’s release will also be delayed. Overall, the goals of the proposed revisions are mainly reasonable; nevertheless, certain clauses may need to be changed in order to balance the interests of the state and the film industry.
*The author is a Ph.D Scholar and Assistant Professor At Galgotias University.
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