Introduction
Films have always been a great source of entertainment for the masses. While the budgets infused into films/cinema, multiplexes have gone up exponentially, films and people involved in making such films have always suffered due to the overwhelming presence of “piracy”. The Supreme Court in State of Andhra Pradesh v Nagoti Venkataramana[1] aptly put across the advent of piracy in films stating:
“Piracy has become a global problem due to rapid advances in technology. Mainly there are three types of piracy, namely, piracy of the printed word, piracy of sound recordings and piracy of cinematograph films. The object of the pirate in all such cases is to make quick money and avoid payment of legitimate taxes and royalties.”
The Delhi High Court more recently in the case of UTV Software Communication Ltd. & Ors. v 1337X.To & Ors.[2] while discussing the profits earned by such pirates stated:
“It is estimated that in India, while the film industry earns around 2 billion dollars from legitimate sources such as screening at theaters, home videos and TV rights, piracy earns 35 percent more at 2.7 billion dollars. It is important to realize that piracy reduces jobs, exports and overall competitiveness in addition to standards of living for a nation and its citizens. More directly, online piracy harms the artists and creators, both the struggling as well as the rich and famous. Consequently, online piracy has had a very real and tangible impact on the film industry and rights of the owners.”
Against this backdrop, the Cinematograph (Amendment) Bill, 2023 assumes monumental significance. The said Amendment Bill has been passed by both houses of parliament and is awaiting presidential assent.[3] The amendment envisages reducing piracy drastically by introduction of Clause 6AA, Clause 6AB and Clause 7(1A) in the Cinematograph Act, 1952. This has also been captured by the legislature in the Statement of Objects and Reasons where Clause (3)(a) iterates that “the Cinematograph (Amendment) Bill, 2023 aims to comprehensively address the issues relating to film certification and attempts to address the issue of unauthorized recording and exhibition of films and curb the menace of film piracy by transmission of unauthorized copies on the internet.”
Proposed Section 6AA, 6AB and 7(1A) of the Cinematograph (Amendment) Bill, 2023
“6AA. No person shall use 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 or abetting the making or transmission of an infringing copy of such film or part thereof.” This definition is much needed as the 1952 legislation does not contain any information about unauthorized recording. Further, it is intriguing to note that the term audio-visual recording device has been defined in the said section as “a digital or analogue photographic or video camera or any other technology or device capable of enabling the recording or transmission of a copyrighted cinematographic film or any part thereof, regardless of whether audio-visual recording is the sole or primary purpose of the device.” The statute does not address the same and hence its iteration in this bill is key for clarity on what constitutes an audio-visual recording device.
“6AB. No person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit–
- at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or
- in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act, 1957 or any other law for the time being in force.”
The proposed section assumes significance in two ways. Primarily, the definition of the section indicates that the motive for committing the act of piracy is profit which had not been iterated by the statute until now. Further, the said provision explicitly recognizes the role of the Copyright Act, 1957 and also seeks to charge the person under the said statute mostly under Section 52. Further, the clause “any other law for the time being in force” indicates that the individual committing piracy may also be charged under the Information Technology Act, 2000 and the requisite criminal legislations as also indicated by Clause 7(1B) of the proposed bill.
“(1A) Save as otherwise provided in Section 52 of the Copyright Act, 1957, if any person contravenes the provisions of Section 6AA or Section 6AB, he shall be punishable with imprisonment for a term which shall not be less than three months, but may extend to three years and with a fine which shall not be less than three lakh rupees but may extend to five percent of the audited gross production cost.”
The said section is the punitive measure enumerated within the act for perpetrators and it stands apart from the earlier statute due to the said reasons: (1) the statute provides for the minimum fine to be Rs. 20,000 (“Rupees Twenty Thousand Only”) while the same may be extended to Rs. 1,00,000 (“Rupees One Lakh Only”). On the other hand, the bill provides for minimum fine to be Rs. 3,00,000 (“Rupees Three Lakh Only”) while the maximum is five percent of the audited gross production cost.
Government’s Control over Films Reduced: Section 6(1) Omitted
The bill with reference to Section 6 of the principal act omits sub-section (1). The said section stated that “the Central Government (may, on its own motion, at any stage.) call for the record of any proceeding in relation to any film which is pending before or has been decided by, the Board and after such enquiry, into the matter as it considers it necessary, make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order:” The said clause would mean that something such as “entertainment” which is completely based on perception would be in the hands of the government even though the film certification board is completely capable of evaluating films and judging their acceptability and impact on the public. This said argument was also raised before the Supreme Court in Union of India v K.M. Shankaraappa[4] where the court rightly concluded that “Once an Expert Body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law-and-order situation. It is for the concerned State Government to see that the law and order is maintained. In any democratic society there are bound to be divergent views.” While the Court commented on the constitutionality of the said section there was no change brought about in the statute until now, but the said omission is a welcome move for the conceptualizers and financiers of a movie since the decision to screen or changes to be incorporated will be made by a singular entity.
Is Increased Punitive Measure the only way to tackle Piracy?
The Amendment Bill would indicate that the legislators have increased the penalty for committing acts of piracy and this is bound to decrease such acts. But the question one must ask is whether the said method is the answer to eliminate piracy? The answer most would give is in the negative. The UTV Judgment by the Delhi High Court may provide an answer for what more could be done to tackle piracy. In Paragraph 75 of the said judgment, the Court noted the importance of website blocking by stating:
“Website blocking has emerged as one of the most successful, cost effective and proportionate means to address this issue. As pointed out by the learned amicus curiae, website blocking can be of various kinds namely, Internet Protocol (IP) Address Blocking, Domain Name System (DNS) Blocking and Uniform Resource Locator (URL) Blocking.”
The said technique must find mention even under the Cinematograph Act, 1952 for exhibitors/financiers of films to approach the Courts to remove websites which may be committing the act of piracy and hence reducing the business of these individuals.
Conclusion
As rightly mentioned by Shri George Baker within the Rajya Sabha “The cancer that is there in this film industry is film piracy and it is still continuing unabated. Thousands of crores of rupees are spent annually in every regional language on film making. I, therefore, urge upon the Government to stop taking lenient action but make it more punitive, and if necessary, impose penalties equivalent to the cost of the film”. This is one of the primary bills which attacks piracy of films. While there are further measures which could be taken as iterated above, this Bill is a welcome move for producers, investors and stakeholders involved in the process of film making in India.
Nikhilesh Koundinya, Associate, Solomon & Co.
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[1] Crl. A. No. 297 of 1996
[2] CS (COMM) 724 of 2017
[3] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1944435
[4] Civil Appeal No. 3106 of 1991