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Review: ‘Cinematograph (Amendment) Bill 2021’ (Ministry Of Information And Broadcasting).
Author: Dishti Titus
Introduction
The Ministry of Information and Broadcasting has proposed amendments to the Cinematograph Act, 1952 (“the Act”) through the Cinematograph (Amendment) Bill 2021 (“the Bill”), published on June 18, 2021.
The Bill proposes to inter alia bestow revisional powers with the Central Government by empowering it to order re-examination of a film already certified for public exhibition on account of violation of Section 5B(1) of the Act and penalise film piracy.
Some of the changes as proposed are seen by this reviewer as being in dissonance with other existing rights and statutes. This review seeks to examine the possible implications and grey areas of the proposed changes.
Revisional Powers of Central Government
The Bill proposes to grant power to the Central Government to send back a film already certified for public exhibition for re-examination which power goes against an earlier ruling of the Supreme Court rightly striking down revisional powers of the Central Government in respect of certified films.
The revisional power is unnecessary as the scope for which such power may be exercised is already sufficiently covered by existing provisions guiding film certification in the Act, guidelines issued by the Central Government for film certification and the Constitution.
The Bill as it stands does not impose any limitation on the number of times a film may be sent back for re-examination. It also not only leaves scope for ordering re-examination of a film that is already being exhibited, but does not provide for procedure to be followed by exhibitors in such a situation.
From the perspective of business owners, not only does this risk misuse of the power by way of curbing creative freedom but this step will likely lead to additional costs given that once a film has been certified, the film is heavily promoted and marketed. Additionally, recourse will only lie with the High Court given the abolishment of the appellate tribunal and thus adding to further costs and delays.
The uncertainties that are brought about amidst the change as proposed, will resultantly discourage content creation given the fear that a film may never see the light of day and also lead to reduction in investment in this sector. Such films becoming controversial in nature possibly will not be picked up by other platforms so as to avoid conflict and scrutiny.
Inclusion of Piracy
The Bill only encompasses piracy by way of an audio-visual recording device and has failed to address other modes of piracy, primarily copying of data from original storage media and distribution.
The inclusion of the offence of piracy in the Bill resultantly seems to give an aggrieved person remedy under two legislations. There exist differences in the Bill and the Copyright Act, 1957 including unequal penalty for what appears to be the same offence. The Bill is also short of other important provisions relevant for piracy such as those included in Sections 64 (power of police to seize infringing copies) of the Copyright Act, 1957. From the Bill it appears that recording for purposes as set out under Section 52 of the Copyright Act, 1957 (acts not amounting to infringement of copyright) may still be permitted.
Further, the term ‘author’ as used in this section is insufficient to deal with situations where any copyrighted work is assigned from the author to another, making the latter the owner of the copyright i.e. entitled to exercise rights over the work to the exclusion of authors.
Other Changes
The introduction of a further subdivision on the basis of age of the category U/A for film certification is a positive development that will help widen the permissible viewer base of films otherwise simply certified as U/A by breaking up this category into smaller fragments on the basis of maturity. The Bill also formally proposes to provide certification to films in perpetuity as opposed to the 10 year currently identified.
While the Bill has identified categories of certification for ‘unrestricted public exhibition’, the ambit of “public exhibition” has not been defined leaving the term as ambiguous and open to varied interpretations.
Conclusion
The overarching power given to the Central Government is unnecessary and may be seen as a threat to the constitutionally guaranteed freedom of speech and expression. Not only does it leave scope for manipulation or stifling of free speech by the Government but would also lead to undue delay in the certification process.
It may well be better to establish an independent film council like the erstwhile Film Certificate Appellate Tribunal to deal with grievances relating to film certification.
The issue of piracy being unequally dealt with by the Bill as compared to the Copyright Act, 1957 and impact of the existence of remedy under two laws also needs to be more fully addressed.
Admittedly, while there is need to update the Act particularly in terms of recourse in respect of film certification, the Bill as it stands features loopholes and grey areas that need to be addressed so as to remove ambiguity and increase effectiveness to the advantage of all.
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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