1. INTRODUCTION
Cinema, a word, that invariably resonates with the general population of the nation, has consistently been the focal point of contention between legislators and filmmakers. Given the industry’s reliance on creativity and freedom of speech and expression, lawmakers have always grappled with the challenge of retaining its artistic and creative elements while ensuring that it remained socially responsible and sensitive to the values of the society. In this tussle between the two objectives, over the past few years, several key amendments have been proposed to, the Cinematograph Act, 1952 (“1952 Act”), India’s primary piece of legislation specifically governing censorship in cinema. Issues pertaining to the procedure of certification of film under the 1952 Act have also been examined by a committee of experts led by Justice Mukul Mugdal in 20131 and by Mr. Shyam Benegal in 2016. 2 The subsequent amendments to the 1952 Act have been introduced keeping in mind their recommendations, the necessity to contemporize the certification process of a film and revisit the revisionary powers of the Central Government, and the measures adopted to tackle the menace of film piracy. To facilitate an easy understanding of the history of the Cinematograph Amendment Act, 2023 (“Amendment Act”), a flow chart with key dates and events has been produced below: The article throws light on the key provisions of the Amendment Act while drawing references to the amendments sought in the previous iterations of the Amending Act in the 2019 Bill and 2021 Bill (collectively referred to as “Bills”). In order to provide readers a thorough understanding, the article analyses each of these provisions in both its prior and current iterations while carefully assessing their significance in terms of their stated purposes in the sections below. 2. SALIENT ASPECTS OF THE AMENDMENTS THUS FAR 1 Report of the Committee of Experts to examine issues of Certification under the Cinematograph Act, 1952, can be accessed here: Link 2 Report of Committee of Experts Chaired by Shyam Benegal to recommend broad guidelines/ procedure for Certification of films by the Central Board of Film Certification (CBFC) Phase-II, can be accessed here: Link February 12, 2019 Introduction of Cinematograph Amendment Bill, 2019 ("2019 Bill") before the Rajya Sabha February 22, 2019 2019 Bill referred to Standing Committee on Information Technology ("Standing Committee") which issued its report in March 2020. June 18, 2021 Cinematograph Amendment Bill, 2021 ("2021 Bill") was released for comments from the stakeholders and public July 20, 2023 Introduction of the of Cinematograph Amendment Bill, 2023 ("2023 Bill") before the Rajya Sabha July 27, 2023 2023 Bill passed by the Rajya Sabha July 31, 2023 2023 Bill passed by the Lok Sabha August 04, 2023 2023 Bill received the assent of the President of India August 11, 2023 Notification of the 2023 Bill in the Official Gazette and enforcement of the Amendment Act www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai 2.1 On Piracy Revisions proposed by the 2019 Bill Piracy has for long raised concerns among filmmakers and film industry associations given the amount of labour, time and money invested in a filmmaking process. The 2019 Bill proposed to tackle piracy by not only prescribing punishment for the perpetrators but also by fostering a sense of deterrence in the society. The erstwhile provision, as proposed, prohibited a person from ‘using any audiovisual 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’ in the absence of a written authorisation from the author. 3 While the section was viewed as a positive step, controversy arose around the usage of the words ‘knowingly’ and ‘author’, particularly in the absence of their definitions. To understand the term ‘author’, reliance was placed on the Copyright Act, 19574 (“Copyright Act”) as referenced in the explanation to the proposed section. “The 2019 Bill was primarily aimed at curbing piracy and therefore, incorporated penalty provisions against those involved in the offense.” However, associations, including inter alia, the Indian Broadcasting Federation suggested to either replace the term ‘author’ with ‘owner’ or expand its meaning in order to encompass cases wherein the economic rights or the ownership of the copyright in the film was assigned to a third party. 5 However, as clarified by the Ministry of Information & Broadcasting (“MIB”), the expression ‘author’ was retained to maintain uniformity with the Copyright Act which provided the status of the first owner to the author. 6 Similarly, the MIB explained that the term ‘knowingly’ was used to link ‘mens rea’ and piracy, mirroring the approach for proving criminal offenses. The 2019 Bill was referred to the Standing Committee which recommended, inter alia, introduction of minimum punishment to offenders7, while emphasizing on the need to clearly define the terms ‘author’ and ‘knowingly’. The Standing Committee also suggested including a clause on exception of ‘fair use’ in order to provide protection to those viewers who did not create a copy for financial gain. 8 Revisions proposed in the 2021 Bill The Standing Committee’s suggestion surfaced in the 2021 Bill to a limited extent as it provided for minimum punishment to the offenders.9 Yet, the suggestion in relation to inclusion of safeguards for innocent viewers was not added to the 2021 Bill. The MIB explained that adding such conditions undermined the purpose of the proposed section10 which aimed to penalize the act of ‘making a copy of a film’. However, apprehensions persisted regarding the scope of the section. As pointed out in a comment, 11 the proposed language of the section lacked clarity on the actions it sought to prohibit i.e., the recording and storage of films or the publication of the film on the internet. Ambiguity also remained in relation to the duration of the recording that was necessary to attract liability under the section’s purview as a person could also record the film for merely 10 (ten) seconds and still be subjected to a same minimum punishment as opposed to someone recording it for a longer duration of time. 3 Section 6AA of the Cinematograph (Amendment) Bill, 2019. 4 Section 2(d) of the Copyright Act, 1957. 5 The Ninth Report (Seventeenth Lok Sabha) of the Standing Committee on Information Technology (2019-20) on ‘The Cinematograph (Amendment) Bill’, 2019, can be accessed here: Link 6 Section 17 of the Copyright Act, 1957. 7 Section 7(1A) of the Cinematograph (Amendment) Bill, 2019. 8 The Ninth Report (Seventeenth Lok Sabha) of the Standing Committee on Information Technology (2019-20) on ‘The Cinematograph (Amendment) Bill, 2019’, Page 28-29, Paragraph 11, can be accessed here: Link 9 Section 7(1A) of the Cinematograph (Amendment) Bill, 2021. 10 Section 6AA of the Cinematograph (Amendment) Bill, 2021. 11 Comments by Centre for Internet & Society (CIS) on The Cinematograph (Amendment) Bill, 2021, can be accessed here: Link www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai Revisions enforced by the Amendment Act Interestingly, the Amendment Act has adopted a slightly different route from the Bills thus far. The Amendment Act forbids anyone in a licensed place of exhibition from using audio-visual devices to create, transmit, or help create/transmit an unauthorized copy of a film or a part of it. 12 Further, the explanation provided to the section has widened the ambit of audio-visual devices to include any device or technology capable of recording or transmitting an infringing copy of the film.13 “The Amendment Act also enables government agencies to take action against any intermediary which is involved in the commission of an unlawful act” Accordingly, by introducing ‘infringing copy’ (as defined in the Copyright Act14) and ‘intention’ and simultaneously omitting ‘author’ and ‘knowingly’ from the section, the Amendment Act appears to have aligned with the recommendations of the Standing Committee made to address the conflicts with the Copyright Act. As stated above, the Copyright Act clearly differentiated between the rights granted to the authors and the copyright owners15, a distinction which the 2021 Bill failed to acknowledge as it only mentioned ‘author’ in relation piracy leaving no recourse for a third-party to whom the author could have assigned his rights. Furthermore, the Amendment Act expressly states that the aggrieved party is not prevented from seeking suitable recourse under the Copyright Act and Information Technology Act, 200016 in case of computer related offences. The Amendment Act also allows government agencies to take suitable action against an intermediary in case such intermediary conspires, aids, abets or induces the commission of the unlawful act or when such intermediary fails to expeditiously remove or disable access to the pirated content even after receiving actual knowledge or upon being notified by appropriate authorities. 17 Pursuant to this provision, the Central Government has recently appointed nodal officers who can, if required, direct the intermediaries as well as social media intermediaries to take down any copyright infringing content.18 This has been done considering the rising instances of film piracy and the magnitude of loss it leads to. However, such takedown orders are to be limited to films which have been certified under the Act and are not applicable to streaming-only shows. These nodal officers have been appointed in the MIB and across various regional offices of Central Board of Film Certification (“CBFC”) including its headquarters, Mumbai. For the purpose of application, either the original copyright holder or any person authorised by them can apply to the nodal officers to direct an intermediary to take down the pirated content. If, however, the complaint is made by a third party who is neither the original copyright holder nor the authorised person by the copyright holder, the nodal officer is free to conduct hearings to assess the validity of such complaints. Thus, whether or not hearings are to be conducted is decided on a case-to-case basis. However, once the nodal officer issues the directions, the intermediary will be bound to take down the pirated content within 36 (thirty-six) hours of such order. The Amendment Act has also considered the suggestions put forth by the Standing Committee in relation to safeguards for innocent viewers and 12 Section 6AA of the Cinematograph (Amendment) Act, 2023. 13 An ‘Audio-visual Recording Device’ means a digital or analogue photographic or video camera, or any other technology or device capable of enabling the recording or transmission of copyrighted cinematographic film or any part thereof, regardless of whether audio-visual recording is the sole or primary purpose of the device as under Section 6AA of the Cinematograph (Amendment) Act, 2023. 14 Section 2(ddd) of the Cinematograph (Amendment) Act, 2023; Section 2(m) of the Copyright Act, 1957 defines an infringing copy as “in relation to a cinematographic film, a copy of the film made on any medium by any means”. 15 Section 51 of the Copyright Act, 1957 - Provides right to sue to only the owner and not the author. 16 Section 66 of the Information Technology Act, 2000. 17 Section 7(1B)(ii) of the Cinematograph (Amendment) Act, 2023. 18 Office Order, Re: Nomination of Nodal Officers under Section 79(3)(b) of the IT Act, 2000 read with rule 3(1)(d) of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, in respect to unlawful information prohibited under the Cinematograph Act, 1952, Link. www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai has incorporated the requirement of ‘intention’ to produce or transmit an infringing copy of the film.19 Considering the above modifications, the Amendment Act can be viewed as a refined version in comparison to its predecessors from 2019 and 2021.20 In fact, by widening the ambit of ‘audio-visual devices’, as explained above, the Amendment Act leaves no scope for anyone to circumvent the law either on account of the form of the recording or basis the device or the technology employed for such recording. Punishment for piracy has also been made stricter with a term of imprisonment not less than 3 (three) months which may be extended up to 3 (three) years and a penalty not less than INR 3,00,000 (Indian Rupees Three Lakhs) which may be extended to 5% (five per cent) of the audited gross production cost of the film. 21 However, what still remains unclear is that if the section also seeks to punish individuals who only record and store the infringing copy of the film and show it to others on their devices without actually ‘publishing’ or ‘transmitting’ it elsewhere. It would be interesting to observe the extent to which these amendments are successful in combatting the menace of piracy. 2.2 Age-based Classification “The Amendment Act classifies the U/A category into U/A 7+, U/A 13+ and U/A 16+ in addition to ‘U’ and ‘A’.” The Amendment Act has further enabled the CBFC to classify films based on suitability for specific age groups, instead of the previous practice of classifying films using only ‘U’ (unrestricted public exhibition); ‘A’ (restricted to adult audiences), and ‘UA’ (unrestricted public exhibition subject to parental guidance for children below the age of 12 (twelve). 22 The U/A category will now be further classified according to the following age-based indicators: U/A 7+, U/A 13+ and U/A 16+. The change will bring uniformity in categorisation across multiple platforms and comes in line with the requirements provided under the content classification in relation to ‘online curated content’ as mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. 23 These ratings also align with the recommendations of the Shyam Benegal Committee. 24 These recommendations allowed teenagers to view specific issues either in a minimal or in a moderate manner depending on the certificate. However, the Shyam Benegal Committee had also suggested subcategorization of ‘Adult’ or the ‘A’ category into ‘A’ and ‘A-C (Adult with caution)’ category to enable adults to make an informed decision about the kind of the film they wanted to watch.25 While the Amendment Act has retained the age-based classification brought in 2021, the sub-categorisation of the ‘A’ category films has still not been introduced. However, it is also true that the age-based classification of certificates under the Amendment Act would now create a window for the filmmakers to address mature themes without attracting an A certificate and still have multiple platforms for exhibition which would have otherwise been limited under an ‘A’ categorisation. Further, a person wishing to exhibit any film classified as ‘A’ or ‘S’ 26 on television can obtain a separate certificate from the CBFC by incorporating the edits and modifications suggested by CBFC. 27 19 Section 6AA of the Cinematograph (Amendment) Act, 2023 20 Section 6AA of the Cinematograph (Amendment) Act, 2023. 21 Section 7(1A) of the Cinematograph (Amendment) Act, 2023. 22 Section 4 of the Cinematograph (Amendment)Act, 2023. 23 Rule 2(q) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. 24 Report of Committee of Experts Chaired by Shyam Benegal to recommend broad guidelines/ procedure for Certification of films by the CBFC Phase-II, can be accessed here: Link 25 Report of Committee of Experts Chaired by Shyam Benegal to recommend broad guidelines/ procedure for Certification of films by the CBFC Phase-II, can be accessed here: Link 26 “S” classification would entail sanctioning of a film by CBFC for public exhibition restricted to members of any profession or any class of persons having regard to the nature, content and theme of the film. 27 Section 4(3) of the Cinematograph Amendment Act, 2023. www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai 2.3 On Revisional Powers of the Government Judicial Intervention In the case of K.M. Shankarappa vs Union Of India, 28 the Hon’ble High Court of Karnataka had opined on the revisional powers of the Central Government holding that the Central Government cannot exercise any revisional powers against a decision of CBFC since that would amount to the Executive sitting in judgment over a quasi-judicial body and therefore would be unconstitutional. This judgment of the Hon’ble Karnataka High Court was affirmed by the Hon’ble Supreme Court in a subsequent appeal.29 The Apex Court upheld the judgment and confirmed that a Secretary and/or a Minister shall not sit in appeal/revision of a decision of a quasi-judicial body, especially when an expert committee has already scrutinised the film clearing it for public exhibition.30 Therefore, the parts of Section 6(1) of the Amendment Act which granted the Central Government revisionary powers over films that have already received their certification from the CBFC were struck down. In order to circumvent this decision of the Apex Court, the Legislature sought to introduce a proviso through the 2021 Bill for the Chairman of the CBFC to re-examine a film upon a direction by the Central Government if it was of the opinion that the film or any part of it was against the interests of the sovereignty and 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. This proposed proviso did not follow the spirit of the judgment in the Shankarappa case and handed the revisional powers to the Chairman of the CBFC who would have to re-examine the film if directed to do so by the Central Government. At this stage, it is pertinent to note that the Chairman of the CBFC is also appointed by the Central Government31, and this would translate into the Central Government having control over the re-examination process, thereby violating the ratio in the Shankarappa case. The Amendment Act The Amendment Act omits Section 6(1) of the 1952 Act in light of the Supreme Court judgement in the Shankarappa case. The erstwhile Section 6(1) of the 1952 Act provided the Central Government with the power to make any orders it may deem fit and necessary, and a matter shall be disposed of by the CBFC in congruence with said order of the Central Government. In the Amendment Act, the previously proposed proviso from the 2021 Bill has not been retained. The Amendment Act is in consonance with the Shankarappa case and has omitted the Section which provided for the Central Government’s revisionary powers. Furthermore, the wording of Section 6(2) has also witnessed a change.32 The erstwhile provision had the language “Without prejudice to the powers conferred on it under sub-section (1)” whereas the Amendment Act has amended the language of the provision to “Subject to the provisions of this Act”. 28 K.M. Shankarappa v. Union of India ILR 1990 KAR 4082. 29 Union of India v. K.M. Shankarappa (2001) 1 SCC 582. 30 Ibid, Paragraph 7. 31 Rule 3 of Cinematograph (Certification) Rules, 1983. 32 Section 6(2) of the Cinematograph Amendment Act, 2023 reads as “Subject to the provisions of this Act, the Central Government may, by notification in the Official Gazette, direct that— (a) a film which has been granted a certificate shall be deemed to be uncertified film in the whole or any part of India; or (b) a film which has been granted a “U” certificate 37[or a “UA” certificate with any UA marker or a “S” certificate] shall be deemed to be a film in respect of which an “A” certificate has been granted; or (c) the exhibition of any film be suspended for such period as may be specified in the direction: Provided that no direction issued under clause (c) shall remain in force for more than two months from the date of the notification. (3) No action shall be taken under clause (a) or clause (b) of sub-section (2) except after giving an opportunity to the person concerned for representing his views in the matter. (4) During the period in which a film remains suspended under clause (c) of sub- section (2), the film shall be deemed to be an uncertified film.].” www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai The 2019 Bill was silent with respect to the changes in the powers of the Central Government even after two decades had lapsed since the Apex Court judgment in the Shankarappa case. The Amendment Act has to some extent limited the scope of intervention by omitting Section 6(1) of the 1952 Act and changing the language of Section 6(2) of the 1952 Act. Omission of Section 6(1) of the 1952 Act would imply that the Central Government would no longer have the power to direct CBFC to re-examine films that have already received certification from the CBFC. The amendment to Section 6(2) of the 1952 Act will subject the powers of the Central Government to the other provisions of the 1952 Act whereas prior to this the same were in addition to the revisional powers under Section 6(1) of the 1952 Act. 2.4 On Validity of Certifications “Lifetime validity of certificates reduces administrative burden and simplifies the certification process” The 1952 Act provided for a certification granted by the CBFC to an applicant to be valid for a period of 10 (ten) years. Under the Amendment Act, that validity period of 10 (ten) years has now been extended to perpetuity.33 In practice, this restriction on validity of certificate for only 10 (ten) years was already removed through executive orders. 34 On the face of it, this amendment will have the positive effect of reducing the compliance that needs to be ensured by the applicant for renewing a certification of a particular film. Additionally, for the CBFC, perpetual validity will reduce administrative burden and streamline the certification process. 3. CONCLUDING REMARKS The Amendment Act has come a long way from the shortfalls of the previously proposed amendments. By tackling piracy in the contemporary setting, especially with the advent of the OTT platforms, the Amendment Act can be said to be a valuable piece of legislation. Further, the Amendment Act, by effectively addressing the conflicts with the Copyright Act, has also allowed to maintain uniformity across legislations. That said, some primary concerns continue to persist with the current framework of the Amendment Act. While the provisions in relation to piracy seem substantive, it still remains unclear as to what would be a minimum duration of such ‘audio-visual recording’ in order to trigger a punishment. Further, while it is true that the Amendment Act has reduced the revisional powers of the Central Government on paper, the implementation of the section, in its spirit remains to be seen especially as the other powers of the Central Government stand as it is. The judiciary also seems determined to uphold the objectives of the Amendment Act. In its order35 pertaining to the film ‘Brahmastra: Part One: Shiva’, the Delhi High Court restrained the defendants from hosting or streaming the film on their websites after a suit was filed by the plaintiffs seeking an injunction against the illegal distribution of the film. Considering that the defendants had infringed the plaintiff's copyright, the Court decreed the suit against them for damages of INR 20,00,000 (Indian Rupees Twenty Lakhs) that is to be paid jointly and severally by them to the plaintiff. In doing so, the Court reiterated the magnanimity of the losses which were caused on account of film piracy and accordingly referred to both the 1952 Act as well as the Amendment Act to underline the intent of the Government to curb the offense. In sum, a cursory glance at the Amendment Act reflects the intention of the Legislature is attempting to strike a balance between responsibly disseminating content while retaining the artistic freedom of the industry. 33 Section 5-A(3) of the Cinematograph (Amendment) Act, 2023 34 Para 3(b) of Cinematograph Amendment Bill, 2021. Can be accessed here. 35 Star India (P) Ltd. v. 7Movierulz.tc 2022 SCC OnLine Del 2744 www.induslaw.com Ben | | | galuru Delhi & NCR Hyderabad | Mumbai Chennai Authors: Ranjana Adhikari| Srija Ray | Akshita Singh |Raghav Kapoor Date: November 21, 2023 Practice Areas: Technology, Media & Telecommunications DISCLAIMER This article is for information purposes only. Nothing contained herein is, purports to be, or is intended as legal advice and you should seek legal advice before you act on any information or view expressed herein. Although we have endeavoured to accurately reflect the subject matter of this article, we make no representation or warranty, express or implied, in any manner whatsoever in connection with the contents of this article.
