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Explained | How Cinematograph (Amendment) Bill proposes to check piracy, revamp certification of films

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The story so far: The Rajya Sabha on Thursday cleared the Cinematograph (Amendment) Bill, 2023 that introduces new age-based certification for films, separate certification for the exhibition of films on television and “other media,” and provides for stringent provisions to penalise piracy with a jail term and fine.

The draft legislation has come a long way from the first version of the Bill was tabled in the Upper House in February 2019. In its present form, the Bill seeks to amend the Cinematograph Act, 1952 which empowers the Central Board of Film Certification (CBFC) to make cuts in films and clear them for exhibition in cinemas. It was introduced in Rajya Sabha by Information & Broadcasting Minister Anurag Thakur last week. 

The Bill also formalises the Supreme Court ruling in K.M. Shankarappa vs. Union of India, which states that the Centre cannot exercise revisional powers on films already certified by the CBFC. “The proposed amendments would make the certification process more effective, in tune with the present times, and comprehensively curb the menace of film piracy, and thus help in faster growth of the film industry and boost job creation in the sector,” reads the text of the Bill.

Also Read | I&B Minister Anurag Thakur demands explanation from CBFC over clearance to Oppenheimer

Amending Cinematograph Act, 1952: an overview

The changes to the Cinematograph Act have been in the offing for a long time, with the film industry demanding the Centre enact a law to control unauthorised recording. In 2013, a controversy erupted over Tamil Nadu’s ban on the screening of actor-director Kamal Haasan’s Vishwaroopam movie. This prompted the then I&B Minister Manish Tewari to constitute an expert commission under the chairmanship of Justice Mukul Mudgal to examine the 1952 Act and issues related to certification. The committee proposed a model Bill and made recommendations on guidelines for certification, classification of films and issues such as portrayal of women, obscenity and communal disharmony, among others. .

Another panel was set up in 2016 to examine the rules of certification and lay a broad framework after reviewing best practices across the world. The committee, headed by filmmaker Shyam Benegal, recommended the expansion of age ratings. It said the censor board must function purely as a certification body and not engage in imposing excisions or changes to a film.

The first version of this bill emerged in February 2019 when the then Minister of State for Information and Broadcasting Rajyavardhan Singh Rathore tabled the draft in Rajya Sabha. The Cinematograph (Amendment) Bill, 2019 proposed penal provisions to tackle offences related to piracy with imprisonment of up to three years and a fine of Rs 10 lakh, or both. It, however, did not take into account panel recommendations on age-based categorisation of certification. The Bill was referred to a Standing Committee on Information Technology. In its March 2020 report, the committee, headed by Congress leader Shashi Tharoor, called for an overhaul of the Act to address issues concerning the transformation of the information and cinematography landscape.

A revised draft put out by the Centre for public comments in June 2021 proposed certification categories based on age, up to three years of imprisonment and a Rs 10 lakh penalty for film piracy. It also allowed the Centre to order the CBFC to re-examine films that have already been cleared for exhibition — a clause vehemently opposed by the film industry. The Centre had earlier dissolved the Film Certification Appellate Tribunal (FCAT), which used to hear appeals from filmmakers aggrieved by CBFC orders.

Amid ‘super censor’ concerns from the industry, the Ministry held discussions with various stakeholders and prepared a new draft.The Cinematograph (Amendment) Bill, 2023 was cleared by the Union Cabinet in April this year and tabled in the Rajya Sabha on July 20.

Which additional age categories have been added for viewing films?

There were only two categories of certificates — ‘U’ (unrestricted public exhibition) and ‘A’ (restricted to adult audiences) when the Act came into effect in 1952. Two additional categories were added in 1983 — ‘U/A’ (unrestricted public exhibition subject to parental guidance for children below 12 years of age) and ’S’ (restricted to specialised audiences such as doctors or scientists).

The latest draft introduces three new age ratings under the ‘U/A’ category— U/A 7+ for children above seven years, U/A 13+ for those above 13 and UA 16+ for those above 16. Online curated content, commonly known as OTT content, is required to adhere to a similar age-based rating for content under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Separately, the draft adds that the Board may sanction a film for “unrestricted public exhibition” if it believes that parents or lawful guardian can use their discretion in allowing a child between seven and 18 years of age to view it. Such films will carry an endorsement containing a ‘U/A’ marker. “An endorsement by the Board shall enable the parents and lawful guardian of the child to consider whether such child should view such a film, and shall not be enforced by any person other than the parents or lawful guardian of the child,” the draft says. 

What is the validity of a film certificate?

A certificate given by the CBFC is currently valid for 10 years under sub-section 3 of Section 5A of the Cinematograph Act, 1952. The Bill provides that a certificate will be perpetually valid throughout India.  

How does the Bill propose to crack down on film piracy?

The Bill introduces two new sub-sections to address the issue of unauthorised recording and exhibition of films. Section 6AA prohibits recording, helping a person record, or transmitting an infringing copy of a film at a licensed place for exhibition without the owner’s authorisation.

6AB, meanwhile, deals with unauthorised exhibition of films, and expands the scope of law from censorship to copyright. It seeks to prohibit the public exhibition of an infringing copy of the film for profit at a location not licensed to exhibit films, or in a manner that infringes upon the Copyright Act, 1957.

The Bill proposes penal action in case of violation of these two sub-sections— a jail term of a minimum of three months and up to three years, and a fine of up to 5% of a film’s gross production cost but not less than Rs 3 lakh.

As per an analysis by the PRS Legislative Forum, certain exemptions under the Copyright Act, 1957 will apply to the two offences. The 1957 Act allows limited use of copyrighted content without the owner’s authorisation in specified cases, such as private or personal use, reporting of current affairs, or review or critique of that work.

What about the certification of films on television, OTT platforms?

Films certified for adult consumption by the CBFC are prohibited on television. A programme that is “not suitable for unrestricted public exhibition” is not permitted to be showcased on cable services, as per the programme code of the Cable Television Networks (Regulation) Act, 1995.

However, as per provisions of the Amendment Bill, the CBFC will be empowered to sanction ‘separate certificates’ to a film for exhibition on television or ‘such other media’; it refrains from mentioning if this will include OTT platforms. “… the Board may, for this purpose, sanction the film with a separate certificate, after directing the applicant to carry out such excisions or modifications in the film as it may think fit,” the Bill states.

The issue of regulation of content on OTT platforms also came up during the debate on the Bill in the Rajya Sabha. BJP’s G.V.L. Narasimha Rao asked the Minister if there are regulations in place to regulate OTT content. “What if a censored film is put on OTT platforms with uncensored content? If you are not able to control OTT, how are you able to restrict censored content being shown as a part of the OTT film industry? If there is no regulation in place, can we have a dialogue with the OTT industry to have self-regulation on OTT content?” Mr. Rao asked.

In his reply, Minister Anurag Thakur told the House that he had recently met OTT players to discuss the self-regulation issue and added that the rules for such platforms come under the purview of the Code of Ethics under the IT Act, which give them self-regulatory powers.

“I told them if they are unable to fulfil their responsibility of self-regulation, we will be forced to take a step. We have to give them the space for creativity since it is a new platform, and it could take some time. But we will raise concerns raised by the members in the next meeting,” Mr. Thakur said.



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