Snigdha Ghose and Durlabhya Singh
Introduction
India is home to the world’s largest film industry, with a market size of more than 182 billion rupees. In spite of annually producing around 1500 to 2000 films, as per the “Deloitte Report on the Indian Film Industry”, of September 2016, the revenue of the Indian film industry stays smaller in comparison to other industries in the global arena. The main reasons include a smaller number of multiplex cinemas, cheap tickets, and, most significantly- piracy.
Recently, “#CinematographBill2023” was trending on Twitter as the Union Cabinet approved the Bill for amending the 71-year-old Cinematograph Act of 1952. The Bill is to be presented in the forthcoming monsoon session of parliament, as conveyed by the Information & Broadcasting Minister – Anurag Thakur. A Bill to amend the Cinematograph Act was presented in the Rajya Sabha in 2019. Recommendations were asked from the Standing Committee on IT and a final report was submitted. After deep discussion and consultation with stakeholders, a draft of Cinematograph Bill 2023 is ready. The new Bill, if made law, would primarily amend the censorship and piracy provisions of the 1952 Act.
Overview of the Historical Background of the Act
The concept of ‘censorship of films’ was first introduced in colonial India by the British Government, which was remonstrated nationwide, but nonetheless approved and came into effect in 1920.
Post Independence, the government still felt the need to retain the censorship model. The Ministry for Information & Broadcasting formed the Central Board of Film Censor in 1951, which evolved in the subsequent enactment of the Cinematograph Act of 1952 and was renamed in 1983 as the Central Board of Film Certification.
The Act has come a long way since, and,it has undergone changes owing to the fact that films are among the most protuberant mediums for conveying messages, ideas, stories or depiction of realities to a very large audience. It has the great power to shape and transmute the viewer’s ideology. Therefore, it is imperative that the certification board be unbiased and righteous. But like other Indian legislations, the Cinematograph Act is not without defects.
The board of CBFC is appointed by the Central Government, and the tenure is flexible and conditioned to the whims and pleasures of the Central Government. Additionally, no minimum qualification is prescribed or required for a person to become a board member. The Central Government is empowered to terminate a member based on reasonable grounds. The Mudgal Committee had also recommended key changes to be made in the Act of 1952 as the “present method of appointment is more political than practical. We have observed that the CBFC often contains members who have little knowledge of the intricacies of Indian cinema and the real societal standards.”
The fundamental right of expression under Article 19(1)(a), which embodies the right to speech & expressions, must not be violated, but the board has been severely criticized for being unreasonable and arbitrary in censoring the films according to their own whims rather than following a certain universal standard.Also, the lack of transparency in appointment of the board members has led to corruption and nepotism. Many provisions in the Act are outdated and not in compliance with the increasing technology and evolving of different platforms like OTT apps. The tactics of pirating movies have also increased unremarkably in the past thirty years, which has resulted in the amendment that we will be looking into in detail.
The Evil of Piracy
The meaning of the term “Piracy” has evolved over time. Initially, it referred to the act of plundering by pirates who attacked ships and coastal areas. However, in the 21st century, the term has taken on a different connotation within the film industry. It now signifies the unauthorized sale, imitation, and distribution of copyrighted films.
With 1,000 films produced annually, India’s film industry is the biggest in the world and brings in about $2 billion through legal revenue streams like home video sales, TV rights, and theatre screenings. However, piracy generates 35% more revenue ($2.7 billion), which makes it difficult to combat the challenges larger than the very industry it circumvents.. Over 90% of the unauthorized copies in film businesses are created through the practice of “Cam cording” at movie theatres. These unauthorized copies surface online shortly after a movie is released. Each year, about 60,000 jobs and over Rs 18,000 crores are lost due to film industry piracy in India.
The film business was anticipated to rise from Rs 138.2 billion ($2.09 billion) in 2015 to Rs 226.3 billion ($3.43 billion) by 2020, with an annual growth rate of 10.5%, according to the KPMG-Ficci report of 2016. but was curtailed to 183 billion rupees due to pandemic. on the Indian media and entertainment sector. However, piracy can obstruct such developments if it is not carefully managed] . The government is concentrating on programs to encourage inclusion by linking communities through broadband, but this could unintentionally encourage piracy because people could find it more convenient to watch movies on their laptops due to access to internet and illegal websites than to travel to far-off theatres.Even innovations like watermarking prints, which allow for global monitoring of their use and movement, haven’t been successful in tackling piracy. The cost of capturing, storing, and duplicating films for distribution has decreased thanks to new technology, such as the digitization of film prints. However, the dangers brought on by leaks and piracy have also increased. Unfortunately, these measures cannot stop the covert recording of unlicensed copies, which is frequently done from the projector room or in poorly lit movie theatres using camcorders or high-quality mobile cameras. Pirated versions of Indian Films are often available, even before their official release, thus saturating the market and the internet. This happens as a result of distributors choosing simultaneous international screenings, which necessitate the shipment of prints 10–12 days in advance. The fact that some countries, like the UAE, release films one day earlier than India (usually on a Friday) adds to the risk of early leaks.
The only remedy to this problem is that people understand the perils of piracy. And, for the same, stricter penalties need to be imposed. The government restricts access to websites that enable downloading of unlicensed films. Most renowned filmmakers state that all parties must work together to effectively tackle piracy, including the federal and state governments, which suffer significant revenue losses from the sale, distribution, and screening of films.
Factors Leading Up to Piracy
The growing sale of pirated films is caused by a number of causes. The market need is one of these elements. Sometimes restrictions related to geography or finances prevent customers from having simple access to a large variety of films. They end up choosing pirated versions as a result. Movies that have been pirated are sometimes offered at discount prices or even for free, which attracts viewers. Pirates can charge such low prices because they don’t have to pay the real costs of production, acquisition, and other legal requirements. The pirate industry concentrates on making a lot of films because their production expenses are low, which generates financial returns.
New technologies have made it simpler for the piracy sector to manage massive volumes of data, such as file compression and storage formats like DVD and Blu-ray. Additionally, customers now find it easier to access pirated content because of the inexpensive high-speed internet options. The dominance of regional film industries in India’s entertainment sector can be attributed to the language barrier prevalent in the country’s small towns and rural areas, which limits the exposure and accessibility of urban developments And, consequently, only about 3% of the legal market is occupied by foreign films. However, regional and foreign films are equally prevalent in the market for stolen content.
Major motion pictures are frequently released only in Tier I and Tier II cities due to the high expenses of distribution, making it nearly impossible for customers in other regions of the country to obtain them legally. When this happens, remote audiences often resort to buying pirated copies, engaging in illegal broadcasts, and attending unauthorized film screenings. The consumption of pirated films might also be influenced by the local political climate. For instance, when Pakistan and India are at odds over political issues, the Pakistani government can outlaw Hindi films, which would enhance the consumption of pirated copies in Pakistan.
In India, there are roughly 30,000 illegal video rental shops, and about 60% of the programming on local cable channels is pirated. These channels are available to 65 million homes, making it super easy to access.
Before their official release date, films occasionally become accessible in a number of cities and towns. Three main leakage points are responsible for this:
- Theft of prints from theatres or processing laboratories before the showing, frequently with the use of “Tele-Cine” machines to convert prints to digital formats.
- The practice of recording a movie in a theatre using a toy camera is known as camera print piracy. Foreign and local films both frequently use this technique.
- The film industry of the region and outside are also impacted by illegal imports. A particular movie may have different release dates in several nations, which presents pirates with an opportunity to obtain the content from those nations and distribute it in India. For illegal imports− Malaysia, Hong Kong, and Singapore are well-known centers.
In addition, important merchants on the black market buy the original film prints and then duplicate them using stamping techniques and CD burners. Then, these stolen copies are offered for sale in significant markets. Numerous users copy these discs and post them online, which exacerbates the problem.
About the Cinematograph Bill (Amendment), 2023
Due to the above stated problems and more, there has been a long awaited and great demand for amending the seventy-one-year-old Cinematograph Act.
According to the new amendment which aims to create new, age-based rating categories for films, i.e., ‘UA-7+’, ‘UA-13+’, and ‘UA-16+’. This amendment aims to address the issue of film piracy by allowing filmmakers to address mature themes within this new age categories without garnering an ‘A’ certificate. The films are categorised as “U- (unrestricted public exhibition), A- (restricted to adult audiences), and UA- (unrestricted public exhibition subject to parental guidance for children under the age of 12)” according to the current system. The introduction of age-based rating categories helps curb piracy as it provides a clearer understanding of the film’s content and target audience. When films are appropriately categorized with age-appropriate ratings, viewers are more likely to choose films that align with their preferences and interests, reducing the appeal of pirated copies. Also, there is an increased incentive for viewers to access legal viewing options. Filmmakers can attract a broader audience while still adhering to content guidelines, and viewers can opt for legitimate streaming or theater services that offer the films within the correct age-based ratings, reducing the demand for pirated copies.
The overt shortcomings [SG1] of the Cinematograph Act, as mentioned in the text, include the issue of film piracy and the need to address film certification-related problems. The current act did not effectively tackle film piracy, which causes significant financial losses to the film industry. The unauthorized recording and exhibition of films in movie theaters will now be effectively tackled using these new provisions which aims to safeguard the film industry’s financial interests.
Earlier, the only provision of law to tackle this issue was Section 51 of the Copyright Act, 1957. A copyrighted work is infringed upon if it is used without the owner’s consent in a manner that is against the law. The possession of materials used to produce unauthorized copies of works protected by copyright is addressed in Section 65 of the Act. Offenders are subject to a fine and a two-year jail sentence. Section 65A establishes a comparable penalty and addresses the evasion of technological safeguards for copyrighted materials. Rights management data is protected by Section 65B, which also makes intentional tampering with such data illegal and punishable by up to two years in prison and a fine. According to Section 66, the Court has the authority to seize and deliver materials that are infringing on the copyright owner. At its discretion, the Court may also issue additional orders on the disposition of copies and plates that are infringing. Although these sections don’t specifically address online piracy or infringement, they can be read and used to penalize people who engage in these practices.
It is quite evident from the above discussion that the degree of legal deterrents meant to curb such activity was very low. Therefore, the Cinematograph Amendment Bill 2023, which proposes to change the current Cinematograph Act of 1952, has received clearance from the Union Cabinet. There is an emphasized need for addressing piracy, implementing age-based film classification, and eliminating superfluous elements from the current Act made by numerous stakeholders.
The proposed measure to insert sub-section (1A) in section 7 which would make the contravention of section 6AA an offence by imposing harsher punishments for those who engage in piracy, including a three-year prison sentence and a Rs. 10 lakh fine. If the measure is passed, transmitting pirated content will also be regarded as piracy and be subject to legal sanctions.
The government’s recent attempt to modify the Cinematograph Act has received backing from T-Series, a significant player in the Indian film business. They are confident that this action will successfully curb movie piracy, causing the sector to grow more quickly and create more job possibilities. Members of the Indian film industry have also praised this proposed bill as they regard it as a step towards protecting the cinematic experience and addressing the issue of film piracy.
Conclusion
According to the authors, the amendment is to be seen in a positive light because it seeks to protect the cinematic experience. The legislation aims to discourage such illicit acts and safeguard the rights of filmmakers and content providers by enforcing harsher penalties, such as imprisonment and significant fines, for those involved in piracy.
However, the amendment still has space for improvement. The setbacks of the Cinematograph Act, 1952 including that of arbitrary appointment and lack of guidelines for the board members and corruption should be duly addressed and a full-fledged election-based mechanism should be built for appointment and dismissal of the chairperson and other members of the board. Board members should not work under the apprehension of pleasing the Central Government’s whims. All-over a diversity of persons, speaking different languages must be selected for better assessing regional films.
In order to effectively tackle piracy, one factor to take into account is improving enforcement methods. To quickly identify and take action against pirates, this would entail improved cooperation between law enforcement organisations, internet service providers, and content platforms. Beyond that, it might be advantageous to launch a thorough awareness campaign to inform people about the consequences of piracy and the value of supporting original material. Campaigns like these can influence society to value and respect intellectual property rights. It may be advantageous to include clauses that promote legal alternatives like reasonably priced and accessible streaming services. The amendment can promote legal movie viewing and lessen the desire to engage in film piracy by giving consumers simple and affordable options.
Overall, we believe that the proposed amendment is a step in the right direction, and additional work should concentrate on effective enforcement, raising awareness, and creating a favourable environment for the distribution of lawful information to eradicate the problem of piracy once and for all.
The authors are students at Gujarat National Law University, Gandhinagar.
NUALS Law Journal 