It has been a busy month in the world of media and entertainment, not just because of the back-to-back releases of blockbuster movies such as ‘Barbie’ and ‘Oppenheimer’ but owing to a keen interest by the Information & Broadcasting Ministry in shaping and modifying film and media-related legislation. The most notable instance comes with the passing of the Cinematograph Amendment Bill 2023 in the Rajya Sabha earlier this week.

It is my sincere hope that this article can serve as a quick guide to understanding the significant changes which will be brought in by this legislation upon its institution. For a detailed look at the bill, one can access it here.

Background:

In recent years, the rise of OTT platforms and the decline in cinema-goers has led to drastic changes in the industry. Coupled with the lack of statutory legislation for OTT content, increasing piracy concerns, censorship debates, and overall ambiguity on the matter, the time has come to take a fresh look at the Cinematograph Act and amend it to today’s needs.

The Statement of Objects and Reasons for the Bill clarifies the need for such amendment,

1. It acknowledges the need to contemporize the certification process for public exhibitions in tune with modern times.
2. It points out the threat of piracy to the industry and clarifies that the Bill aims to comprehensively curb this menace.
3. It aims to harmonize the law with judicial decisions. In particular, the omission of the revisional powers of the Central Government in light of the Supreme Court Judgement in the matter of Union of India Vs. K. M. Shankarappa.

Key Points:

1. Inclusion of the definition of ‘infringing copy’

The Bill makes applicable the definition of ‘infringing copy’ as provided in Section 2(m)(ii) of the Copyright Act, 1957 to the Cinematograph Act by its inclusion in Section 2(ddd) thus, harmonizing the two.

2. Introduction of age-based certification

The Bill includes the addition of clause (i) to Section 2 which provides for age-based indicators such as ‘UA 7+’, ‘UA 13+’, and ‘UA 16+’ for films that will have received or will be intended to receive a ‘UA’ certificate. The explanation clarifies that this shall enable the parents and the lawful guardian of the child to consider whether such child should view such a film, and shall not be enforced by any person other than the parents or lawful guardian of the child.

3. Separate certification for television/other media

The Bill provides for a separate certification to be obtained by any person who wishes to exhibit a film on television or any such other media even if the film is certified by the board for public exhibition if it is (i) restricted to adults or (ii) restricted to members of any profession or any class of persons for the purposes of exhibition.

4. Perpetual Validity to CBFC’s certification

The Bill amends Section 5A(3) and grants perpetual validity to the certificates granted by the Board in contrast to the 10 years validity granted currently under the prevailing act.

5. Omission of revisional powers of the Central Government

In line with the Union of India v. K. M. Shankarappa judgement, the amendment omits Section 6(1) which granted revisional powers to the central government.

The Hon’ble Supreme Court had stated, “Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the Executive and the Government is concerned. To permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the Executive. Under our Constitution the position is reverse. The Executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution.” 

This omission will ensure that the Central Board of Film Certification shall be solely responsible for certification.

6. Addition of Sections 6AA and 6AB to clampdown on piracy

The Bill seeks to add Sections 6AA and 6AB to the act which clarifies that no person shall use any audio-visual recording device in a place licensed to exhibit films with the intention of/in an attempt to/abet the making or transmission of an infringing copy of such film or a part thereof and no person shall use/abet the use of an infringing copy to exhibit to the public for profit.

Section 7(1A) further mentions that any person contravening the above-mentioned sections shall be punishable with imprisonment ranging from 3 months to 3 years and a minimum fine of 3 lakh rupees which may extend to five percent of the audited gross production cost of the film.

Section 7(1B) clarifies that the aggrieved person 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.

Implications

The Bill seems to tackle all the growing concerns it has chalked out in its statement of objects and reasons:

Sections 6AA and 6AB tackle the issue of piracy and are complimented by Section 7(1A) and 7(1B) providing strong punishments and recourse for the aggrieved.

The grant of perpetual validity to certification will contribute to the ease of doing business as it cuts out the need for re-certification and the introduction of separate certification for selected films for public exhibition on television and other medium shall finally bring some statutory restriction to content on OTT platforms which has been primarily self-regulatory up until now.

The omission of Section 6(1) and the addition of the definition of ‘infringing copy’ has harmonized the statute with prevailing judicial decisions and will cut through any undue delay in the way of justice.

This article was first published on IPRMENTLAW