Reviewing the Cinematograph (Amendment) Bill 2023

The Cinematograph (Amendment) Bill, 2023 amends the Cinematograph Act,1952 and comes as a revision to the version which was withdrawn from the Indian parliament on July 20, 2023. The 1952 Act led to the establishment of the Central Board of Film Certification (CBFC) and set guidelines for film certification and exhibition within the country, aiming to ensure the age-suitability of film content and adherence to copyright laws. 

The bill introduced in the Rajya Sabha in 2019 focused on amendments to include provisions against piracy to this Act. However, it was withdrawn taking into account the Standing Committee’s observation that the Act required a more comprehensive update than the one proposed. This amendment addresses the concerns raised by the committee and includes significant revisions that aim to ‘contemporise’ the certification process. In this regard, it proposes changes to more comprehensively address two key concerns – film certification categories and film piracy.

The Cinematograph (Amendment) Bill introduces new certificate categories and restrictions based on the age-appropriateness of content in films. Under the previous law, films were certified for exhibition as ‘U’ (without restriction), ‘UA’ (with guidance of parents for children below 12), ‘A’ (only for adults), or ‘S’ (only for specific groups). The amendment divides the ‘UA’ category and replaces it with three age-specific categories: ‘UA 7+’ for those above 7 years, ‘UA 13+’ for those above 13 years, and ‘UA 16+’ for those above 16 years. The Bill states that the age endorsements under the UA category are not enforceable measures but have been introduced to act as points of guidance for parents and guardians to make informed decisions about whether the content is suitable for their children based on their maturity and sensitivities. 

Further, films categorised as ‘A’ and ‘S’ are now permitted to be aired on television (TV). Disallowed for broadcast on TV previously under the The Cable Television Networks (Regulation) Act 1995, these films will now undergo different certification processes to be broadcast on television. This change to the certification process was introduced in response to two evolutions in the film industry. Firstly, technological advances that have changed the way that films are disseminated and consumed and secondly, the decline in cinema audiences. 

In a report published in February 2023 Ormax Media found that there has been a 16.3% drop in cinema-going audiences since early 2020. Additionally, despite the trend of increasing viewership on OTT platforms, a BARC Report from 2020 found that there had been a 6.9% increase in TV ownership between 2018 and 2020, bringing the number of TV owning households to 210 million. TV viewership for Hindi movies and regional movies also increased during this time, indicating that a large section of the population still relies on TV for entertainment purposes. 

The Cinematograph (Amendment) Bill, 2023 has expanded the scope of what can be televised while simultaneously allowing the CBFC to subject these films to additional scrutiny and censorship specific to television or media broadcasting. Following this decision, the Rajya Sabha has raised concerns about the need for similar supervision of content on OTT platforms. A separate discussion between the Ministry of Information and Broadcasting and officials from OTT platforms was held on July 18, 2023 regarding content regulation and the establishment of a regulatory body for the OTT platforms.

Additionally, the Bill removes the revisional powers of the central government regarding certified films or those pending certification under section 6(1), making it consistent with the ruling regarding the unconstitutionality of this provision in K. M. Shankarappa v. Union of India in 1991, held by the Supreme Court in 2001. It also states that certificates issued by the CBFC will no longer be valid only for a period of 10 years, but instead for perpetuity. As a result, any disputes or issues arising from the certification process or decisions made by CBFC will be handled and resolved by the Board itself, reinforcing its position as the final authority on film certification related matters. 

This departure is significant as it addresses the concerns regarding freedom of expression and the criticism that the proposed increase in regulatory powers of the central government in the 2021 draft Bill had received. These criticisms had come after the abolition of the Film Appellate Tribunal under the Tribunals Reform Act, 2021 and raised concerns about the threats that the combination of potential political interference and the permission to recall issued certificates posed to the filmmaking and film distribution process. 

The second theme that The Cinematograph (Amendment) Bill, 2023 engages with is the issue of film piracy. It does this through two clauses that target the issues from two different stand-points. The first, is clause 6AA which prohibits audiences from engaging in any unauthorised audio-visual recording with the intention of reproduction of the content. This seeks to address the problem at the stage of creation of pirated content. The second clause, 6AB, prohibits unauthorised exhibition of films. It addresses concerns related to the use of the pirated copy to mitigate the dissemination and consumption of pirated content. It also grants authority to state governments to act against film piracy by blocking websites and URLs that host pirated content. Exemptions to these offences include those mentioned under the Copyright Act, 1957, allowing audiences to use the content for private or personal use, reporting current affairs, and to review and critique it. 

This Bill also addresses the concerns raised by the Standing Committee in 2020 regarding the requirement of these provisions in light of the pre-existing penalties for copyright infringements under the Copyright Act, 1957 in that it introduces separate and more stringent punishments specifically for film piracy. It makes film piracy punishable by imprisonment ranging from three months to three years or a fine between three lakh rupees and 5% of the audited gross production cost of the film or both. These changes come as a response to tackle the heavy losses – of about twenty thousand crore rupees – that the film industry experiences to piracy annually. 

In spite of its comprehensive approach, the Bill falls short in two regards as observed by the committee. Firstly, in terms of the contents of the bill, its silence on the matter of explicitly defining the nature of the offence of piracy could potentially lead to ambiguity and differing interpretations, which might hinder consistent enforcement. Secondly, and addressing an issue that is much broader than the contents of the Bill, the committee observed that the Bill required a complementary system to ensure effective application in that the provisions in the bill have to be supported by a well-formulated mechanism and legislature. This includes setting up a mechanism that considers the complexities of Internet Service Providers (ISPs) monitoring content and the challenges in blocking copyright-infringing websites, and addressing the issue of cross-border piracy. 

Owing to India’s non-membership in anti-counterfeiting trade agreements that facilitate cooperation on intellectual property rights issues among nations, the provisions of the Bill remain unable to address instances of film piracy that originate in foreign countries, a crucial aspect of its practice in modern times. This raises questions about the adequacy of the legislation in the face of international digital challenges. The committee recommended considering a national law similar to the Digital Economy Act adopted by countries like the UK to address this concern, indicating that as the digital landscape continues to evolve, so will the need for updated legislative deliberation and development in the field of film dissemination and consumption.