CINEMATOGRAPH (AMENDMENT) ACT, 2013 – SAY NO TO PIRACY
Arvind Ramesh, Associate – Real Estate, Infrastructure, Corporate Practice
In India – Cinema, its exhibition and certification are governed by the Cinematograph Act, 1952 (“Act”) and the rules laid down under the Act. Recently, the Union Government had brought into force an amendment to the Act, harmonising the Act with existing laws and introduced new provisions for combating piracy. The amendment titled “the Cinematograph (Amendment) Act, 2023” (“Amendment Act”) received the President’s assent on the 04th of August 2023 and was published in the Gazette on the event date.
New Changes:
1. New Movie Certifications:
Prior to the amendment, Films, or movies in common parlance, were accorded four kinds of certification by the Central Board of Film Certification (“CBFC”) as per section 5A of the Act and they are:
1.1. “U” Certificate – unrestricted public exhibition;
1.2. “UA” Certificate – Unrestricted public exhibition but subject to an endorsement in the form of viewing with Adult supervision;
1.3. “A” – Public Exhibition restricted to Adults;
1.4. “S” -public exhibition restricted to members of any profession or any class of persons.
The Amendment Act introduces a definition of “UA Marker” in the form of sub-section (h) of Section 2 and states that “UA marker” means an age-based indicator for a film which has received or is intended to receive a “UA” certificate under section 4 and such indicator may be “UA 7+” or UA 13+” or “UA 16+”.
The clause further provides the government the right by an order published in the Official Gazette to declare such other indicators. Thus, the government may in the future, vide an order, introduce more age markers or other markers for the classification of UA films.
2. Perpetual Validity of Film Certification:
The Act under sub-section (3) of Section 5 imposed a condition that the certificate issued under this Act shall be valid across India for a period of ten (10) years. The Amendment Act has done away with the term mentioned and has brought forth perpetual validity of the certification . With yesteryear movies now being released across theatres, this seems like a welcome move for producers , who now no longer would have to go through the process of re-certification.
3. New Process for Television Broadcast of Films with “A” and “S” certificates:
The Amendment Act had introduced a new obligation under subsection (3) of Section 4 of the Act ,i.e. any person who desires to exhibit films with “A” and “S” certification on television or other media may make an application to the CBFC in such form and manner and the CBFC shall sanction the film with the separate certificate, after directing the applicant to carry out such excisions or modifications.
The key part to note is that the sub-section uses the word “Television or other media”. Interestingly, television programmes and its regulation are covered under the Cable Television Networks (Regulation) Act, 1995 and the term “other media” may also refer to OTT platforms. Thus, it appears that the Amendment Act seems to be extending the ambit of the Act and only time will tell as to how the various laws would interplay.
4. Revisional Power of Central Government modified:
The Act under subsection (1) of Section 6 provided the Central Government with the suo moto power to call for records of any proceeding in relation to a film pending before or decided by CBFC and conduct an inquiry and make such order as it thinks fit and the Board shall dispose of the matter in conformity with such order. The Amendment Act has removed this subsection, but however the Central Government still retains to provide directions including deeming a certified film as uncertified in whole or part of India, or deeming a film granted with “U”, “UA” or “S” as film in respect of which a “A” certificate has been granted as per subsection (2) of Section 6. However such direction shall not be undertaken without providing an opportunity to the person concerned.
5. Anit-Piracy: Prohibition on Unauthorised Recording and Unauthorised Exhibition:
The Amendment Act introduced a new Section – Section 6AA which prohibits any person from using 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 to abetting the making or transmission of an infringing copy of such film or part thereof.
Further, a new section – Section 6AB was introduced by the Amendment Act, which prohibits any person from using or abetting the use of an infringing copy of any film to exhibit to the public for profit.
6. Interplay between Copyright Act, IT Act and Cinematograph Act:
The Amendment Act introduced a new definition in the Act for “ Infringing Copy.” The term shall have the same meaning as defined in the Copyright Act, 1957. The above definition is being used to bring forth the anti-piracy prohibitions as mentioned above.
7. Enhanced Penalties:
The punishment for violation of the anti-piracy sections mentioned above results in the offender being punishable with imprisonment for a term not less than three (3) months , but may extend to three years and fine not less than three (3) lakh rupees but may extent to five percent of the audited gross production cost.
The Amendment Act further clarifies that the action under this Act shall not curtail the right to seek parallel remedies under section 51 of the Copyright Act, 1957 and section 66 of the Information Technology Act, 2000 or any other laws in force.
Conclusion:
The Amendment Act appears to be a welcome move alleviating a lot of issues faced by the movie producers. The introduction of perpetual validity of film certification and the tough penal provisions introduced to stop piracy would go a long way to improve protection of IP rights in India. We would have to wait to see how the introduction of re-certification for exhibition of films with “A” and ”S” certification plays in the realm of television and OTT.