India: Pirates Beware! Government Tightens Noose With Cinematograph (Amendment) Bill, 2023

The Lok Sabha passed the Cinematograph (amendment) Bill, 2023 on July 31, 2023 after the Bill was approved by the Rajya Sabha on July 27, 2023. The last amendment to the Cinematograph Act, 1952 was made in the year 1984, almost 40 years ago. ¹

The Bill attempts to reconcile the growing disconcert in the film industry and focuses over the key issue of piracy while also spotlighting over other matters of concern like certification of films and revisional powers of the Central Government.

The main objective and purpose of the Cinematograph (amendment) Bill, 2023 is to fight piracy and promote the film industry. The Bill focuses on (i) the issue of unauthorized recording and exhibition of films and curb the threat of piracy by transmission of unauthorized copies on the Internet; (ii) the issue of improving the categorization of certification of films and the procedure for certification of films for public exhibition by the CBFC (Central Board of Film Certification) and; (iii) harmonizing the law with extant executive orders, judicial decisions and other relevant legislations.

Prohibition of unauthorized recording and exhibition of films:

The Bill has included new sections 6AA and 6AB relating to 'Prohibition of unauthorized recording' and 'Prohibition of unauthorized exhibitions of films' respectively.

Section 6AA. No person shall use any audio-visual recording device in a place licensed to exhibit films with the intention of making or transmitting or attempting to make or transmit or abetting the making or transmission of an infringing copy of such film or a part thereof. ²

Section 6AB. No person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit—

• at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or

• in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act, 1957 or any other law for the time being in force.'

The inclusion of the above-mentioned sections has raised the benchmark for assessing and attributing liability for piracy.

Retributive Actions

Any person found to be engaged in the offenses laid down under Sections 6AA and 6AB shall be punishable with imprisonment for a term period of anywhere between three months to three years and a fine ranging from three lakh rupees to five percent of the audited gross production cost of the film

Interplay Between the Amendment Bill, Copyright Law and Information Technology Act

Section 7(1B): Notwithstanding anything contained in this section—

• a person aggrieved by a contravention under Section 6AA or Section 6AB shall not be prevented from taking suitable action for an infringement under Section 51 of the Copyright Act, 1957 or from taking suitable action for computer related offences under section 66 of the Information Technology Act, 2000 or any other relevant laws for the time being in force;

• the appropriate Government or its agencies shall not be prevented from taking suitable action against an intermediary as defined under clause (w) of sub-section (1) of section 2 of the Information Technology Act, 2000, where such intermediary acts in the manner as set out under sub-section (3) of section 79 of the said Act or any other law for the time being in force.

Further, the Cinematograph Bill, 2023 takes into cognizance offenses being carried out on the digital medium and allows the aggrieved party to take action for computer-related offenses covered under Section 66, Information Technology Act, 2000³ or any other relevant laws currently in force, in addition to an action for copyright infringement. Further, unlike its predecessors, the Bill empowers Government agencies to take action against intermediaries engaged in abetment of piracy.

Other pertinent amendments made under the Cinematograph (amendment) Bill, 2023 are:

Age Based Categorization:The existing age-based certification in the 'UA' category (i.e. without restriction, but subject to the guidance of parents or guardians for below 12 children) has been sub-divided into three age-based categories i.e., UA 7+ (seven years), UA 13+ (thirteen years), UA 16+ (sixteen years).

Perpetual validity of certificates:The restriction of 10 years validity of a certificate granted by the Central Board of Film Certification has been increased to perpetuity, which means certificate granted by the CBFC are valid for lifetime.

Re-certification of films for television/other media:The Bill empowers the Central Board of Film Certification to provide separate certificates for a film's exhibition on television or other media and can further direct the concerned party to carry out necessary modifications in the film before sanctioning the film for public exhibition.

The films with 'A' certification (films available for public exhibition but with restrictions to adults aged 18+) and 'S' certification (films which certain members of the society such as doctors and scientists are permitted to watch) will require a separate certificate for exhibition on television, or any other media prescribed by the Central Government.

Alignment with Hon'ble Supreme Court judgments: The Bill omits the revisional powers of the Central Government over the CBFC's decisions based on the judgment of the Hon'ble Supreme Court in the case of Union of India vs. K.M. Shankarappa.

K.M Shankarappa by way of writ petition had challenged the constitutional validity of certain sections of the Cinematograph Act, 1952 wherein some portions of Section 6(1) of the Act relating to revisional powers of the Central Government had been held unconstitutional.

Salient changes are tabulated below:

CONCLUDING THOUGHTS

With easy access to the Internet and the availability of smartphones, the menace of piracy is indeed on the rise and has had a huge impact on the film industry. The film industry is purported to be grappling with losses to the tune of 20,000 crores annually on account of the piracy of films. The negative impact of piracy does not end at monetary losses and also leads to loss of intangible assets, such as, intellectual property.

As the new Bill envisages greater punitive measures, it remains to be seen whether the same will indeed have the desired deterrent effect on piracy and is able to assuage the concerns of all stakeholders involved.

As regards the issue concerning further classification of age based certification, such legislative moves are likely be taken with a pinch of salt as the same may be perceived as a political move to exercise control over viewers' choices.

Lastly, the Bill does not offer any clarity on whether the provisions extend to control of content on OTT platforms or not and leaves much to be desired in that respect.

Footnotes

1. https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1944435

2. https://prsindia.org/files/bills_acts/bills_parliament/2023/Cinematography_Bill_2023.pdf

3. https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf

Related Posts

Copyright infringement in case of cinematographs -Analysis of MRF Limited. vs Metro TyresLimited

What is the cost of filing a copyright in a Cinematograph Film in India?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.