This article is authored by Aathira Pillai a 4th year BLS LLB student of Dr. D. Y. Patil College of Law.
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 which are arising with the transforming era. After receiving Cabinet assent on 06.02.2019, the Cinematograph (Amendment) Bill, 2019 was introduced in the Rajya Sabha on 12.02.2019, proposing to add a new section 6AA and a new sub-part (1A) to Section 7 of the Act. On 16.03.2020, the Standing Committee on Information Technology (2019-20) delivered the 9th Report on the Cinematograph (Amendment) Bill, 2019, in the Rajya Sabha and Lok Sabha, proposing to alter the Bill’s sections based on the Committee’s specific recommendations. The government recommended further revisions to the existing Cinematograph Act, 1952 on June 18, 2021.
CRUX OF THE CINEMATOGRAPH (AMENDMENT) BILL, 2021
Perpetuity of the Certificate Granted:
The certificate issued by the Board is valid for ten years under sub-section 3 of section 5A of the current Cinematograph Act, 1952. Although the restriction on certificate validity for just 10 years has been lifted by executive orders, the existing clause in the Act has to be revised to eliminate the requirement, allowing the certificate to be valid indefinitely for a perpetual period of time.
Revising the Guidelines for Certification:
The new proposal would change the present Act to give the Centre “revisionary powers” and allow it to “re-examine” films that have already been certified by the Central Board of Film Certification (CBFC). The Ministry of Information and Broadcasting suggests that the Act be amended to give the Centre revisionary powers in circumstances where Section 5B (1) is infringed (principles for guidance in certifying films). The Centre already has the authority under Section 6 of the current Act to request records of proceedings in connection with a film’s certification. Essentially, the Central Government has the right to overturn the Board’s decision if the situation warrants it. thus allowing the arbitrary powers to be in exercise.
In KM Shankarappa vs. Union of India, the Hon’ble High Court of Karnataka stated that the Central Government cannot exercise revisionary powers over films that have already been certified by the Board which had been upheld by the Hon’ble Supreme Court of India.
Certification on the basis of Age:
In the Draft Bill, it is also proposed to add a proviso to section 6 sub-section (1), stating that if the Central Government receives any references in respect of a film certified for public exhibition on account of a violation of Section 5B (1) of the Act, the Central Government may, if it considers it necessary, direct the Chairman of the Board to re-examine the film.
Films are currently classified into three categories: ‘U’ for unrestricted public showing, ‘U/A’ for children under the age of 12, and ‘A’ for adult films. In the new draft, the categories are divided into three age groups: U/A 7+, U/A 13+, and U/A 16+.
Provision against Piracy:
The draft intends to introduce Section 6AA, which will criminalise to unsanctioned record without permission.
No one shall be permitted to use any audio-visual recording device at a location to intentionally make or transmit, attempt to make or transmit, or abet the making or transmission of a copy of a film or a part thereof without the explicit permission of the person, notwithstanding any law consistent with the provisions.
Penalty violations are punishable by imprisonment for a period of not less than three months, but not more than three years, as well as a fine of not less than Rs 3 lakh, but not more than 5% of the audited gross production cost, or both.
CRITICAL EVALUATION OF THE BILL
The British believed that Indians needed to be shielded from the destabilizing influence of the mass medium, which led to the “censorship” of cinema in India since the pre-independence era. We were stuck with bygone and irrelevant norms and regulations; therefore a shift in censorship was desperately required. Though, the new restrictions to content creation pose a danger to the existing public discourse space constraining the liberties of the artists stipulating the autocratic tendencies of the government.
Curb on Freedom of Speech and Expression:
Movie is one of the legitimate and most important medium in which matters of general concern can be treated and handled to suffuse public with relevant information of the occurrences around, as said by the Supreme Court in S. Rangarajan vs. P. Jagjivan Ram, 1989 SCR (2) 204. The court also opined that the State cannot impede open discussion and expression, however hostile to its policies.
Because the provisions of the Bill can be pursued in line with the authorities’ whims and fancies, the proposed revisions will render film makers subservient in the hands of the state with arbitrary powers conferred and more exposed to threats, destruction, and intimidation by mob censors. The peril that social media eruptions would lead to mob censorship and abuse of government power is not far-fetched in an atmosphere of austere nationalism and governance.
Freedom of Speech and Expression is being threatened with interminable powers being bestowed upon the authorities. Over-the-top (OTT) platforms have also been subjected to new regulations. According to the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021,” these platforms must appoint chief compliance officers to ensure that the rules are followed, as well as nodal officers to coordinate with law enforcement agencies and grievance officers. Entrusting with the government the authority to censor content restricts not only freedom of expression but also democratic dissent.
Dissolution of Film Certification Appellate Tribunal:
The fear that the certification process is becoming more restricted has grown after the Centre with dismantling the Film Certification Appellate Tribunal (FCAT), which provided a platform for filmmakers to seek recourse if the CBFC denied them a certificate has aggravated the apprehension that the certification process would be more stringent.
Piracy and Copyright Act:
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. It does, however, solely target commercial initiatives that are intended for public display.
A film is also protected by copyright in almost every country. In general, anyone who infringes on the copyright owner’s exclusive rights is accountable under that country’s copyright law. The Copyright Act makes it illegal to copy a film on any medium or by any means, including film recording in a theatre. Under Section 63 of the Copyright Act, infringement of a work’s copyright is a punishable offence. In the event of disobedience with the current regulation for Film Piracy, there would be a conundrum on the regulating provision.
Any copying of copyrighted material done for a restricted purpose, such as to remark on, criticize, or parody a copyrighted work, is considered a fair use. Such uses are legal without the permission of the copyright owner. Fair use is a defence to a copyright infringement action, to put it another way. The Cinematograph Act’s punitive clause’s applicability under the aforementioned instances would be confusing.
ISPs are the channels employed for accessing any website or application on the Internet; are not authorised to monitor the content transmitted on their network, so they act as a conduit for data and information transmission over the Internet and are unaware of any IPR infringing content or their own website. With the protection and shield of being an intermediary is extended under the IT Act, they are protected from prosecution in the event of internet piracy because they are unaware of any illicit content streaming via their network unless they are informed and alerted of the content circulation.
With these regulations, audiences would just seek content for entertainment from outside the country, depriving the element of creativity because consumers are apathetic with the phenomenon of governance. The government now has unchecked power, putting democracy in jeopardy being labeled by the critics as a super censor. A large number of artists and filmmakers have signed an open letter to the Information and Broadcasting Ministry, expressing their opposition to the government’s proposed changes to the Cinematograph Act, 1952. “This provision will effectively give the Central Government supreme power over cinema and artistic exhibition and promotion in the country, potentially endangering freedom of expression and democratic dissent,” the letter said, calling the move “another blow to the film fraternity” by undermining the Censor Boards’ power and the Supreme Court’s sovereignty.” While the film industry acknowledges the efforts to combat piracy and age-based certification, filmmakers across the country opines it as an impediment to creativity, which is at the essence and core of artistic creation and cinematography.
This article is authored by Aathira Pillai a 4th year BLS LLB student of Dr. D. Y. Patil College of Law.
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