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On July 31, the Lok Sabha passed Cinematograph (Amendment) Bill, 2023, which was earlier passed by the Rajya Sabha on July 27, 2023. It amends the Cinematograph Act, 1952 after almost 40 years, with the last significant amendments being made in 1984. There had been earlier attempts to amend the Act through amendment bills in 2010, 2019 (discussed by Divij here), and 2021 (discussed by Adyasha here). While the Amendment Act is not substantially different from the 2021 Bill which Adyasha discussed in depth, the current post provides some comments on new changes, especially with respect to piracy and its punishment. In brief, while the maximum punishment for piracy is minimized from the previous bill, it is still on the higher side when compared with the earlier provision in the 1952 Act and opens doors to seek remedies prescribed within other laws. It is also worth noting that the “Statement of Objects and Reasons” 2023 Act mentions piracy causes loss to the Government exchequer, a note of which was also made in 2019 Standing Committee Report (without actually defining the amount of loss to the government; see para 23 for data on the loss to the industry.)However, it avoids defining piracy which normally means copyright infringement, and instead uses it in a way that seems to distinguish it from copyright infringement. Following this approach, the Amendment Act  treats these two concepts separately throughout, offering penalties and remedies for them.

What is an Authorized Place of Exhibition: Unlike the undefined “exhibition facility” of the 2019 Bill and the vague “a place” of the 2021 bill, as shown in the tabular format below, the 2023 Act lays emphasis on the “authorized place of the exhibition.” Although the Act does not define the same, one can make a good guess by looking at Section 10 of the 1952 Act which regards such a place as a physical place, appearing in Section 2(e) of the Act. Thus, it seems that this would be a physical place especially a theatre where a film can be exhibited. Apparently, this would not include OTT platforms. Prima facie, by limiting the place of  piracy to “a place licensed to exhibit films”, the recent Act seems like an improvement from the previous bills that had kept it undefined/vague.

Additional Enablement under Copyright and IT Acts and Introduction of Intermediary Liability: Apart from imposing various penalties, the recent Act allows an aggrieved individual to take legal action for computer-related offenses under Section 66 of the Information Technology Act, 2000 or any other relevant laws currently in force. Unlike previous bills, this legislation also empowers the government to take action against intermediaries. And thus, it may contribute to the growing control of intermediaries in India through amendments to the IT Act and other measures (e.g. see here and here). However, it needs to be pondered upon as to how an “authorized place of the exhibition” which is supposedly a physical place plays out with “intermediaries” which dwell in digital space. Will interplay pop up only where an infringer is making an infringing copy in a licensed place of exhibition and is later exhibiting it in the digital space? Or will the question of “intermediaries” being regarded as “authorized places of the exhibition” will arise in the future?

Furthermore, the 2023 Act enables aggrieved individuals to pursue action under Section 51 of the Copyright Act 1957 for copyright infringement. In simpler terms, this creates the possibility of two separate claims: one under Section 6AA regarding “infringing copy” and another for copyright infringement under Section 6AB of the Act. However, it’s worth noting that as per 2023 Act, “infringing copy” under Section 6AA gets its meaning from sub-clause (ii) of clause (m) of section 2 of the Copyright Act 1957. Therefore, if the recent Act assumes the actions under Section 6AA to be piracy committed out of an infringing copy, (which it apparently does), it perhaps speaks of copyright infringement only.

From “Knowledge” to “Intention” of User, and “Copy” to “Infringing” Copy: The scope of the provisions relating to piracy remained intact in the latest Act as it mentions “making or transmitting or attempting to make or transmit or abetting the making or transmission” like previous drafts. However, unlike the previous drafts which mentioned “knowledge” of the user and “copy” as the relevant metrics of liability, the recent Act emphasizes the “intention” of the user and the “infringing copy” of the film to assess liability. This new emphasis can come to rescue some users by opening gates for other possible defenses such as de minimis use which is not explicitly provided in Section 52. Another positive note is that like the 2021 draft and unlike the 2019 draft, the 2023 Act acknowledges exceptions under Section 52. Notably, this change seems to be in line with Standing Committee Report on the 2019 Amendment Bill (see para 32).

Increased Punishment For Piracy: The recent Act  introduces strict punishments for offenses under Section 6AA and 6AB.  The new Act prescribed imprisonment between three months and three years and a fine of three lakh rupees which could extend to 5% of the audited gross production cost. It is noteworthy that the said “5 % of audited gross production cost” can be a gigantic sum in the case of big-budget movies and can surpass the punishments presently  prescribed under Section 7(1) of the Act i.e. imprisonment up to three years, or with a fine which may extend to one lakh rupees, or with both. And in case of a continuing offense, there could be a further fine which could extend to twenty thousand rupees for each day during which the offense continues.

Other non-IP points and Concluding Thoughts

Besides the above points, the addition of age-appropriateness certification and the (indirect) implications of re-certification for film exhibitions on other media platforms also need highlighting. Given the replacement of the UA category (i.e. without restriction, but subject to the guidance of parents or guardians for below 12 children) with three age-based certificate categories namely  (i) UA 7+, (ii) UA 13+, or (iii) UA 16+, raises a question — whether the evolving (or devolving) social consciousness around movies and the rise of cancel/boycott culture (e.g. see this paywalled piece) in India exerting de facto control over movie choices, makes the additional age-based control seem somewhat politically patronizing. Plus, the latest Act provides additional control over the dissemination of content by systemizing a separate certification for Films with an ‘A’ or ‘S’ certificate for exhibition on television, or any other media. Given the increasing use of OTT platforms and politicization of film fodder in recent years (e.g., see here and here), doesn’t this provision further serve as a means to shape (or sap) public consciousness? Relatedly, the present Act proposes to replace the initial 10 years validity with perpetual validity of certification raising another question – whether such a classification maintains timeless relevance. For e.g. does a movie that received an A certificate in 2001 hold the same level of appropriateness for an A certificate in 2024?

I hope, however, that the Act achieves what it seeks i.e. making “the certification process more effective, …. and comprehensively curb[ing] the menace of film piracy, and thus help[ing] in faster growth of the film industry and boost[ing] job creation in the sector.”

Thanks to Swaraj Barooah and Praharsh Gour for their insightful input on the post.

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• Source: https://spicyip.com/2023/08/cinematography-bill-2023-certification-censorship-and-public-consciousness.html